McDonnell v. Harter

Decided April 15, 1859

Illinois Supreme Court · decided 1859-04-15

This was an action of assumpsit. There was a plea of the general issue filed. The affidavit of merits to the plea, states that defendant had a good defense on the merits, except as to $458 of plaintiff’s demand. The court, with this plea on file, entered a default, and gave judgment for plaintiff.

Cited by 2 later decisions — most recently September 1922

2 state decisions

Key passage — most relied on by later courts

““The plea of the general issue was regularly filed, and was never stricken from the files. On this state of the record the court assessed the damages as if upon a default. If the affidavit of merits, which was filed with the general issue, was insufficient, the plea should have been stricken from the files. "While it remained it was a bar to the action, until tried by a jury, or by the court with the consent of the parties in place of a jury, and found to be untrue.””

quoted by 1 later decision, including Dailey v. Grand Lodge Brotherhood of Railroad Trainmen

Good law ✅— No negative treatment on recordhow we know

Decided 1859-04-15

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Caton, C. J.

¶1The plea of the general issue was regularly filed, and was never stricken from the files. On this state of the record the court assessed the damages as if upon a default. If the affidavit of merits, which was filed with the general issue, was insufficient, the plea should have been stricken from the files. While it remained it was a bar to the action, till tried by a jury, or by the court with the consent of the parties in place of a jury, and found to be untrue. There was no such trial, nor indeed was there any issue formed on this plea. It stands upon the record as a simple naked bar to the action. The judgment must be reversed and the cause remanded.

¶2Judgment reversed.