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83 Ill. 239

McCormick v. Wells

Illinois Supreme Court

Decided September 15, 1876

Illinois Supreme Court · decided 1876-09-15

Joseph E. Gaby, Judge, presiding. This was an action of assumpsit, by Thomas J. Wells against Francis A. McCormick and Joseph Rigby, upon three promissory notes, given by defendants to M. J. Wilson, and by him indorsed to the plaintiff. The plaintiff filed with his declaration his affidavit of the sum due him from defendants, and on what account, after allowing all just credits, deductions and set-offs.

Relies on Hays v. Loomis

Good law ✅— No negative treatment on recordhow we know

Decided 1876-09-15

How this case has been cited

Cited by 4 later decisions — most recently April 1931

4 state decisions

201876188018901900191019201930decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Mr. Justice Scott

¶1delivered the opinion, of the Court:

¶2On 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.

¶3A 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.

¶4The judgment will be reversed, and the cause remanded.

¶5■Judgment reversed.

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