Wells v. Mathews

Mr. Justice Dibell delivered the opinion of the Court. Spradling v. Russell, 100 Ill. 522, sustains the action the court took in this case, if good cause therefor was shown. The sole contention of appellants is that as their plea was filed January 8, 1896, and the motion for leave to file an affidavit of claim was not made till September 25, 1891, it came too late, or at least should not have been granted without a showing as to the time when plaintiff learned defendants had no defense, and not at all if it appeared plaintiff knew that fact when the declaration was filed. This position ignores the proof tending to show defendants withdrew their plea as soon as filed, that plaintiff took the previous judgment by default in ignorance of the existence of a plea, and that the motion for leave to file an affidavit of claim was made only four days after the case was re-docketed in the trial court. The plaintiff made his application for leave to file an affidavit of claim on the fourth day the trial court had - jurisdiction, after he learned defendants proposed to interpose a defense. We think he made his motion in apt time. If defendants had asked leave to file an affidavit of merits with, their plea it must have been granted. As they did not ask such leave it is a fair presumption they could not make such an affidavit, and had no defense. If not, they have not been injured. The judgment will be affirmed.