McCormick v. Wells

Illinois Supreme Court
McCormick v. Wells, 83 Ill. 239 (Ill. 1876)
Scott

McCormick v. Wells

Opinion of the Court

Mr. Justice Scott

delivered the opinion, of the Court:

On motion of plaintiffs, the pleas of defendant were stricken from the files for the alleged want of a sufficient affidavit of merits. This was error. The affidavit contained everything the statute requires, viz: that defendants believed they had a good defense to the suit, upon the merits, to the whole of plaintiff’s demand. One objection taken is, the affidavits were not properly entitled in the cause. This precise point was made in Hays v. Loomis, 84 Ill. 19, and it was there ruled, notwithstanding the objection, the affidavit was sufficient.

A rule was laid upon defendants to file an additional affidavit by a day fixed, setting forth in detail such facts as would satisfy the court defendants had a meritorious defense to plaintiff’s cause of action, but, defendants failing to make answer to the rule, a default was entered against them. ¡No statute has made it the duty of defendants to file an affidavit setting forth in detail such facts as would satisfy the court they had a meritorious defense to plaintiff’s cause of action, and for that reason they were not Bound to observe the rule. It is sufficient the affidavit is in the language of the statute, that defendants believe they have a defense to the suit, upon the merits, to the whole or a part of plaintiff’s demand. As we have seen, the affidavit in this case answers every requirement of the statute in that particular, and is’therefore sufficient.

The judgment will be reversed, and the cause remanded.

■Judgment reversed.

Reference

Full Case Name
Francis A. McCormick v. Thomas J. Wells
Cited By
3 cases
Status
Published
Syllabus
1. Practice—affidavit of merits accompanying plea. An affidavit of merits, filed with a plea, in the language of the statute, that the defendant believes he has a defense to the suit upon the merits, to the whole or a part of the plaintiff’s demand, is sufficient. It is not -necessary it should set forth in detail such facts as will satisfy the court of a meritorious defense. 2. The affidavit of merits will not be rendered insufficient because it is not entitled in the cause.