Anthony, impl., etc., v. Ward.

THIS was an action in covenant commenced by the defendant in error, against Elliot Anthony, plaintiff in error, and one Julius C. Smith, to recover payment of an installment due upon certain articles of agreement, made between said Ward, of the first part, and Smith and Anthony of the second part.

July 15, 1858. Defendants filed plea of non est factum, in the usual form.

December 14, 1858, in the November special term, the cause was regularly reached upon the docket of said court, and came on for trial. Whereupon the said plaintiff, Ward, (defendant in error) made a motion, among other things, to strike the plea, filed by both defendants, on the 15th day of July, 1858, in this cause, from the files, and for a default, so far as the defendant, Elliot Anthony, was concerned, and by him pleaded; on the ground that the affidavit of merits, filed July 9, 1858, in this cause, was not made in behalf of both defendants; which affidavit is in the words and figures following:

JULIUS C. SMITH et al.

ads.

EPHRIAM WARD.

Cook Common Pleas.

STATE OF ILLINOIS-COUNTY OF COOK, ss.

that he is one of the

Julius C. Smith being duly sworn says, defendants in the above entitled cause, and that he has a good defense thereto, upon the merits, as he is advised and verily believes.

J. C. SMITH.

To which motion, the defendant, Elliot Anthony, objected, that said motion was made too late, and should have been made at the first term after the same was filed; but that the plea had been permitted to remain during some five terms of said court.

But the said court overruled the said objection, granted said motion, and ordered the plea of the defendant, Elliot Anthony, to be stricken out, and his default taken.

To which ruling and decision of the said court, the said defendant, Anthony, excepted.

And the cause was thereupon tried as to the other defendant, who did not appear, and damages assessed against said Anthony also; and judgment rendered therein against both defendants for the sum of one thousand nine hundred and sixty-four dollars and nine cents.

Anthony assigns for errors

1st. The court erred in striking from the files, the affidavit of merits filed in this cause, after the lapse of several terms of the court below.

2nd. The court erred in striking from the files the plea filed in the court below.

Anthony, impl., etc., v. Ward.

3rd. The court erred in taking the default of defendant below.

4th. The court erred in rendering judgment for the plaintiff below.

Wherefore, for the errors aforesaid, and for other errors, the said plaintiff in error prays that said judgment may be reversed, etc.

ELLIOT ANTHONY, Pro Se.

H. C. KELLEY, for Defendant in Error.

BREESE, J. The only question presented by the record in this cause is, did the court below err in striking the plea of plaintiff in error from the files, for want of an affidavit of merits, and not permitting certain pleas afterwards filed by him to stand. The record shows a joint action against the plaintiff in error and one Smith. On being called for trial on the 14th December, 1858, in the November term, 1858, of the Cook County Court of Common Pleas, the plaintiff moved the court to strike from the file the plea of plaintiff in error impleaded with Smith, which he had filed on the 13th of December, 1858, and for a default against him, for the reason that no affidavit of merits was filed with the plea. There was an affidavit of merits filed by his co-defendant Smith, on the 9th July, 1858, and not on behalf of the plaintiff in error, and that the pleas of plaintiff in error of the 13th December were filed without leave of the court having been first asked and obtained, and after a long and unreasonable delay. The affidavit of merits by Smith is personal to himself alone, with no reference or allusion to his co-defendant.

The plaintiff in error then filed his cross-motion that the pleas so filed be permitted to stand, and presented his affidavit stating in substance that he could make and file an affidavit of merits if his pleas were allowed to remain, and objected that the motion to strike his pleas from the file was too late-that it should have been made at the first term after the plea of July 15th, was filed.

The court overruled his objections, and refused leave to file the pleas of December 13th, and ordered that they should be stricken from the files, and his default entered for want of an affidavit of merits, and the damages assessed.

By the 14th section of the act regulating the practice in the Cook Circuit and Common Pleas Courts, it is provided that in all suits arising on contracts brought to any term of said courts, the plaintiff shall be entitled to judgment unless the defendant

Sedgwick v. Phillips.

shall with his plea, file an affidavit of merits, etc. (Scates' Comp. 272.)

The record shows no such affidavit by the plaintiff in error. Smith's affidavit cannot aid the plaintiff in error, for his merits may have been personal to himself. It often happens that one of several co-defendants has a meritorious defense, whilst the others cannot defend. The law requiring such affidavit, and the plaintiff in error not having made one, we do not see how he can escape the consequences.

As to the suggestion that the motion was not in time, that the motion for judgment for default should have been made earlier, we have to say, that the defendant in error cannot be prejudiced by not taking a default earlier, as such a judgment is interlocutory only and there was an issue pending with his co-defendant Smith, which had to be disposed of before final judgment could be entered against the plaintiff in error. Final judgment could not rightfully be entered until the issue was disposed of. Teal v. Russell, 2 Scam. R. 319; Mc Connell v. Swailes, ib. 571; Dow v. Rattle, 12 Ill. R. 373.

We see no error in refusing to permit the pleas filed in December to stand. That was a matter purely within the discretion of the court, and we cannot say he has abused that discretion. Conradi v. Evans, 2 Scam. R. 185. They were not accompanied by an affidavit of merits, and there was no leave to file them at that late day. The judgment is affirmed.

Judgment affirmed.

ROBERT SEDGWICK, Appellant, v. EDWARD PHILLIPS,

Appellee.

APPEAL FROM ROCK ISLAND.

If exceptions are not taken to instructions, the Supreme Court cannot consider them.

THIS was an action of assumpsit, commenced in the Rock Island Circuit Court, by appellant against appellee, at the September term, 1858, of said court,

Plaintiff's declaration contained a special count, for lumber sold and delivered to the defendant, and the common counts for goods sold and delivered, etc. Defendant pleaded the general

22 183 153 668

44a 107

Sedgwick v. Phillips.

issue, and filed notice that on trial he would prove an offset of $500. Issue joined.

Plaintiff offered the testimony of Porter S. Skinner, who said, I am one of the firm of Keator & Skinner, lumber dealers, at Moline, Illinois; our firm delivered lumber to Mr. Phillips, defendant, on the order of Abraham Hartzell, to the amount of $256.53; the order was accepted with the understanding that the value of the lumber so delivered to Phillips, should be endorsed on the note; this has been done; have been paid for the lumber in this way.

The order for the lumber was in writing; did not know Robert Sedgwick in the transaction; have no lumber charged to Robert Sedgwick.

A verdict was rendered for defendant. Plaintiff moved for a new trial; motion overruled, and plaintiff excepted. Judgment rendered for defendant, for costs.

A. WEBSTER, for Appellant.

B. C. Cook, for Appellee.

BREESE, J. The instructions given by the court were not excepted to on the trial, as the record shows, and we cannot therefore now consider their propriety. Leigh v. Hodges, 3 Scam. R. 17; Gibbons v. Johnson, ib. 63; Hill v. Ward, 2 Gilm. R. 293; Martin v. The People, 13 Ill. R. 342; Duffield v. Cross, ib. 700.

The proofs show that the defendant took the order for the lumber from Hartzell, with the distinct understanding that it was to pay Hartzell's debt to him, and to be charged to Hartzell, not to himself. On that order the defendant got the lumber, and we know of no rule of law or principle of justice by which he could be made the debtor of the plaintiff, by any arrangement made between other parties behind his back, and to which he was not assenting.

The merits are clearly with the defendant, and we affirm the judgment in his favor. Judgment affirmed.

Craig v. Peake et al.

RUFUS L. CRAIG, Appellant, v. WILLIAM PEAKE et al.,

Appellees.

APPEAL FROM BUREAU.

If on a trial of right of property, there is evidence tending to show property in the claimant, it is erroneous to instruct the jury that he fails to show any right, and they must find against him.

THIS was an appeal from the verdict of a jury, on a trial of the right of certain property, levied upon by the sheriff of Bureau county, on several attachments, in favor of the appellees, against Abner M. Moore, and which property was claimed by appellant.

The verdict of the jury empanneled by the sheriff, was in favor of the claimant, (the appellant,) and the appellees appealed to the Circuit Court of Bureau county.

The cause was tried at the April term, 1858, of the Bureau Circuit Court, before BALLOU, Judge, and a jury. The jury rendered a verdict for the defendants, (the appellees here.) The claimant moved for a new trial, which was overruled, and a judgment rendered against appellant, for costs.

The bill of exceptions shows that the appellant, on the trial, proved the execution of, and gave in evidence, a power of attorney, under seal, from Abner M. Moore to Thomas E. Morgan, dated June 12, 1857, authorizing Morgan to collect debts, give receipts, etc., and contains the following clause: "I also empower my said attorney to sell and transfer all, or any part of my stock of goods, at wholesale or retail, which I have on hand in my store in Sheffield, or otherwise, by deed or otherwise, and whatever my said attorney may or shall lawfully do in the premises, I do hereby confirm the same, as if I were present and did the same in my own proper person.'

Appellant also proved and gave in evidence, a deed from Moore by Morgan, as his agent and attorney in fact, to appellant, dated June 15th, 1857, selling and transferring the goods in Moore's store at Sheffield, to appellant, in trust to sell the same, etc., and pay

1st. Expenses of sale and collection;

2nd. Pay one certain note of $500, made by Moore and appellant, to C. T. Nash, and two other notes, payable to certain merchants in Boston, both made by Moore and appellant, "on all of which notes the said Craig is the surety of said Moore;" 3rd. Pay all other creditors of Moore, and the balance, if any, to Moore.