Andrews v. Campbell

Per Curiam : Campbell brought an action of assumpsit against Andrews, to the May term, 1877, of the Superior Court of Cook county. Summons was duly served, and on the second day of the term (declaration and affidavit of claim having been filed'in apt time), the defendant failing to appear or plead, his default was entered, damages assessed, and judgment against him for $1724.99 and costs. A few days after, at the same term, defendant appeared and moved the court to set aside the default and permit him to plead to the merits. This motion was overruled, and to this ruling defendant excepted and appeals to this court. The only error assigned is, that the court improperly denied the motion. On this motion defendant produced his own affidavit, that he had a meritorious defence, and his own affidavit and that of his attorney, that a few days before the beginning of the term defendant employed an attorney to defend him in this action, and that the attorney prepared a plea to the merits, and defendant attached thereto his own affidavit verifying the plea and setting out his defence; and that the attorney thereupon placed the plea and affidavit- - in the hands of a young man in his office, who usually attended to having his papers filed, with directions to file them, and that the attorney supposed the plea, and the affidavit of merits thereto attached, had been placed on file until the day after the default was entered. On this showing of the defendant the Superior Court, perhaps not improperly, might have allowed the motion, but the setting aside of a default is a matter within the discretion of the court in which the default is entered. The exercise of that discretion will not be disturbed in an appellate court, except in cases where it appears affirmatively that such discretion has been abused and injustice done. It appears by the affidavit of defendant’s attorney, that he knew of the taking of the default on the tenth day of the month, the default having been taken on the ninth, and the motion to set aside the default was not made until the seventeenth day of the month. There is no explanation whatever of the delay in making the motion. Such delay might have occasioned the loss of a trial at that term had the motion been granted, when it might have been otherwise had the motion been made and allowed immediately upon the knowledge of the default coming to the attorney. Such delay in making the motion may have influenced the exercise of the discretion of the court. We can not say there was;here such abuse of the discretion of the court that we should interfere with its exercise. The judgment will be affirmed. Judgment affirmed.