Holloway et al. v. Freeman. The court overruled the motion and rendered judgment upon the verdict, and the defendants excepted. The defendants then prayed an appeal to the Supreme Court. H. M. WEAD, for Appellants. J. K. COOPER, for Appellee. BREESE, J. The motion to dismiss, was not based upon any defects or objectionable matter appearing upon the face of the papers, and was consequently, not regular or proper. The cross-motion to strike it from the files expressly refers to rules four and seven of the court, and makes therefore, those rules a part of the motion. What those rules are, we have no means of knowing, as they are not copied into the record. We will presume however, that the court below, under those rules, had sufficient reason for entertaining the cross-motion and striking the motion to dismiss from the files. That the County Court can establish rules of practice and proceedings to facilitate the business of the court, is undoubted, as they have powers concurrent with those of the Circuit Court, (Scates' Comp. 1226,) and that Circuit Courts have such power is unquestioned. Without this concurrence, the County Court, we apprehend, being a court of record and of large jurisdiction, would possess an inherent power to establish rules of practice. Every court of record possesses such power. This court has said in general terms, that questions of the kind here presented, may be raised by plea in abatement or motion to dismiss, but that must be taken with this qualification; where it appears on the face of the papers, that the writ has improvidently issued, a motion to dismiss will be entertained, when it does not so appear but extrinsic matters have to be shown, that must be done by plea in abatement, so that an issue of fact may be made up and tried upon such matter. To this right the plaintiff is entitled, but from which he would be precluded, if the subject can be summarily disposed of on motion. When the defects appear on the papers, the court can determine them on inspection, and no issue is necessary-hence, the motion to dismiss in such cases will be proper. The cases of Kenney v. Greer, 13 Ill. R. 432; and Waterman v. Tuttle, 18 ib. 292, do not conflict with this view. As to pleas in abatement, it is to be observed that great strictness is required in framing them, as they are dilatory, not going to the merits of the action. They must be signed by counsel they must specify truly the parties in the cause. 1 Tidd's Pr. 639, 640. Holloway et al. v. Freeman. In this case the action is against Robert H. Holloway and Henry M. Bogges. This plea is signed Robert Holloway and H. M. Bogges, non constat, that they are Robert H. Holloway and Henry M. Bogges. Nor is the plea signed by counsel. Another objection to the plea was taken, and is given as one of the reasons why the court should strike it from the files; it is, that the plea and the jurat attached to it, showed alterations and a filling up after it was sworn to. This is stated in the motion, but as this cannot be seen by this court, we are bound to presume that those reasons existed and were the basis of the action of the court below. We have a right to suppose this, as the court ruled out the plea on that, among other reasons filed. We do not think either, that this plea in abatement was filed "in apt time." In Kenney v. Greer, 13 Ill. R. 449, this court say, The statute gives the defendant a privilege which he can waive, and he must be regarded as having done so unless he makes his objection to the writ in apt time. Now this "apt time" clearly was, at the earliest practicable moment. The plea being dilatory, this is the rule. The defendants did not do this, but interposing an insufficient motion, they waived their right to plead in abatement. As to the other point made by appellants, it is sufficient to say, that the oral testimony sought by the defendants from the witness, was in contradiction to the written evidence they themselves had introduced. The note sued on was for $401, payable in one year from the 24th April, 1857. The defendants introduced the witness Mileham, and proved by him two bonds for deeds executed by one F. C. Hankinson and Alfred Freeman, dated April 24, 1857, for the conveyance of certain lands by them to the defendants, one of which bonds specified the consideration to be two hundred dollars, for which three notes were executed, one for sixty-seven dollars, payable May 15th, 1857-one for sixty-eight dollars, payable in one year from date, and one for sixty-five dollars, payable in two years from date. The other bond specifies a consideration of four hundred dollars, payable by three notes, two for one hundred and thirtythree dollars, and one for one hundred and thirty-four dollars. The witness was then asked if the note sued on was the note or one of the notes given for the purchase of the land. The objection was thereupon made, and sustained, that at the then stage of the defendants' own proof such evidence was not admissible. The notes and bonds introduced proved themselves, and there was no fraud or circumvention pleaded in obtaining the execution of the notes sued on, or any mistake in the description of the notes described in the title bonds pretended. The defendants after Bolton v. McKinley. having introduced evidence of this kind, showing that the notes given on the purchase of the land were drawn in favor of two persons and for different amounts and payable at a time different from the note sued on, the question they put to the witness was not pertinent to the case--it was irrelevant. They could not be admitted to disprove by parol all the written testimony they had themselves introduced. We discover no objection to any of the rulings of the court, and therefore, affirm the judgment. Judgment affirmed. 22 203 131 518 WILLIAM H. BOLTON, Plaintiff in Error, v. WILLIAM ERROR TO COOK. The Circuit Court may set aside a judgment by confession, on motion, during the term at which it was rendered. This exercise of discretion is not matter for review in the Supreme Court. If the conscience of the court in reference to the exercise of this discretion, is aided by the trial of a feigned issue, and the finding is in favor of vacating the judg ment, the case then stands for pleading and trial. This practice not approved of. Error will not lie to correct the finding under the feigned issue, the judgment thereon not being final. THIS case is stated in the opinion of the court. in the Circuit Court was before MANIERRE, Judge. CLARKSON & TREE, for Plaintiff in Error. E. VAN BUREN, for Defendant in Error. The hearing WALKER, J. The plaintiff in error obtained a judgment by confession, under a power of attorney, against the defendant in error, at the November term, 1857, of the Cook Circuit Court, for $1,818 and costs. The judgment was confessed upon a note purporting to have been executed by defendant in error to plaintiff in error, for $1,793, and the power of attorney also purported to have been given by him authorizing the confession of judgment at any time after the execution of the note. At the same term of the court defendant entered a motion to stay execution and proceeding under the judgment, and to set the same aside, and to be let in to defend, upon the grounds that the note and power of attorney were not valid and binding, but were void. The court on the motion entered an order staying all prc Bolton v. McKinley. ceedings under the judgment, until the motion to vacate the judgment should be determined, and also ordered that a feigned issue be formed, to try the validity of the note. That issue was formed by filing a declaration and pleas, and the feigned issue thus formed was tried by the court and jury, and, resulted in a verdict in favor of the defendant in error. The court thereupon vacated the judgment entered by confession, and quashed the execution issued thereon, from which the plaintiff in error prosecutes this writ, for the reversal of that proceeding. The only question presented by this record, necessary to be considered, is whether the court below had the power to set aside the judgment by confession, on a motion entered at the same term at which it was rendered. The practice is too well settled to be questioned, that the court has the discretionary power, at any time during the term at which an order in a cause has been entered, whether it be interlocutory or final, to vacate and set it aside, for such cause as may be necessary to promote justice. This is constantly done in cases of judgment by default, and is sometimes done in cases of judgments by confession, and when done, it is held to be discretionary and not subject to review on writ of error or by appeal. The usual practice, and doubtless the better one, is to hear such motions on affidavits, and if the defendant shall satisfy the court that it is probable that he has suffered injustice by the entry of judgment by default or confession, the court should vacate the judgment and let the party in to plead and make his defense. But if the court should hear the motion on verbal testimony or before a jury to try a feigned issue, and should set the judgment aside, no exception can be taken to the proceeding in this court. The object of the evidence, whether by affidavit, deposition, or heard orally in court, is to inform the court of the propriety of setting aside the judgment, and the same end may be attained by either mode. Nor can it be objected that in vacating the judgment, the court acted upon the verdict of the jury on the feigned issue, as it is a matter of judicial discretion, to be exercised by the court as in other cases. And while the practice of forming a feigned issue to try such questions, is believed to be new wherever the common law practice prevails, and should not be encouraged, as tending to delay and greatly increased expense, when such a course is not excepted to by either of the parties we cannot say that the order should for that reason be reversed. The object of the feigned issue in this case, was not to try the merits of the case in which the judgment had been rendered by confession, but must have been to inform the conscience of the court whether that judgment should be vacated. And on the trial of the issue, the court heard the evidence of both parties, Peck et al. v. Wilson, use, etc. and also had the verdict of the jury to aid him in determining whether there was a reasonable probability that the judgment by confession had been improperly rendered, and upon the whole evidence and the verdict of the jury, he saw proper to exercise his discretion in vacating the judgment and quashing the execution. By this order the defendant was let in to plead, as if that judgment had not been entered, and that cause should proceed to trial and judgment as other original causes in the court. The judgment in this proceeding is not final, and therefore neither an appeal or writ of error will lie from it. The order entered, only disposed of a motion in the case, as if a judgment by default were set aside on motion and the defendant permitted to interpose his defense. When this motion was disposed of, it removed the judgment in the case, and opened the way to proceed with the suit on the note to trial and judgment. And if that trial has not already taken place, nothing is perceived from the record in this case to prevent the parties from still proceeding to such trial. The judgment of the court below, vacating the judgment and quashing the execution issued upon it, and permitting the defendant to plead to that action, must be affirmed. Judgment affirmed. 22 205 126 380 205 72a 378 22 205 JAMES PECK et al., Appellants, v. JOHN L. WILSON, use, etc., 94a 1239 Appellee. APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS. A writ of retorno habendo need not be issued and returned at length, before an action can be brought on a replevin bond. It will be sufficient if a return was adjudged, and proof is made of disobedience to the judgment. A default admits all the facts well pleaded. In an action on a replevin bond, the breach need not be set out broader than the condition, nor need the proof be more extensive than the breach. A forfeited replevin bond, is not such a contract, as is contemplated by the third and fourteenth sections of the practice act for the courts of Cook county. Those sections allude to contracts for the payment of money, and a plea to an action on such a bond, should not be stricken from the files for want of an affidavit of merits. THIS action was brought on a replevin bond where the action of replevin was not tried on the merits, but was dismissed for want of prosecution. The declaration was on a replevin bond for the replevy, by Bishop, of 8,918 feet first clear lumber, 207,197 second clear |