Stuber v. Schack

83 Ill. 191

• Court: Illinois Supreme Court
• Decided: September 15, 1876
• Status: Published

Opinion

Mr. Justice Soholfield

delivered the opinion of the Court:

We do not regard the sufficiency of the first affidavit to the plea as before us. Had appellant intended to rely on that affidavit, he should have stood by it. By filing a second affidavit, he abandoned the first, and relied solely on the second. It would, undoubtedly, have been sufficient for the defendant, in the second affidavit, to have followed the language of the statute, without disclosing the facts upon which he relied as constituting the defense; but when he undertook to state the facts, it was incumbent on him to state such as the court could see constituted, in fact, a meritorious defense. The facts stated in the second affidavit show that the defendant had no defense, and negative his conclusion in the preceding part of the affidavit.

There does not appear to have been any sufficient consideration for the promise to forbear, the promise to pay interest being merely a promise to do that for which the party was already liable. Waters et al. v. Simpson et al. 2 Gilm. 576. Nor does it appear that the agreement was made without the knowledge and consent of the defendant. It being thus apparent that the defendant had no substantial defense, he has sustained no injury, and has no cause to complain of the ruling of the court in striking his plea from the files.

The judgment is affirmed.

Judgment affirmed.