Caldwell v. McCay

Ib.. Justice Boggs delivered the opinion of the Court. The failure of the appellant to take issue upon the plea and to appear had no other effect than to authorize the court to dismiss the cause. It was error to allow the appellee to waive a jury and confess a judgment in favor of appellant. Williams v. Brunton, 8 Ill. 600; Thompson on Trials, Vol. 2, Sec. 2229. The judgment so entered is an adjudication of appellant’s demand and concludes him unless reversed. The. error is therefore not merely formal, but of reversible character. The case of City of East St. Louis v. Thomas, 102 Ill. 453, is cited as authority in support of the suggestion the error is merely formal. The judgment affirmed in that case was rendered against the plaintiff, against whom default had been entered because of a failure to reply to a plea of set-off. Set-off is in the nature of a cross-action, and the same principles apply to its maintenance that would govern an independent action brought thereon. Our statute provides the plaintiff shall not be permitted to dismiss his suit without leave of the court or consent of the defendant in case a plea of set-off has been interposed. A plaintiff may therefore be defaulted if he fails to take issue upon a plea of set-off, and the court may proceed to final judgment against him, as was done in City of St. Louis v. Thomas, supra. But in the case at bar there was no plea of set-off and the failure of the plaintiff to appear and plead amounted to a discontinuance of the action, and the court should have in such case dismissed the suit for want of prosecution. •For the error indicated the judgment must be and is reversed and the cause remanded.