Wacker v. Young

Mr. Justice F. A. Smith delivered the opinion of the court. Charles H. Wacker, defendant in error, brought an action against John N. Young, plaintiff in error, in the Circuit Court of Cook county, on three promissory notes for $1,000 each, dated March 3, 1899, and due in three, four and five years respectively, after date, with interest at 4 per cent.; the notes were payable to the order of Charles EL Wacker, and signed John 1ST. Young. Various pleas were filed, the cause placed on the docket, and, when reached for trial, judgment by default was entered, defendant, (plaintiff in error) being absent from the court room. Plaintiff in error here urges reversal of the judgment, and assigns as errors, that the court erred in rendering judgment on an affidavit of merits filed by plaintiff while a counter affidavit was on file, without further evidence being submitted to the jury; that the court erred in entering a judgment by default while appearance by counsel, plea and affidavit denying any indebtedness was on file; and that the court erred in denying motion to set aside the judgment. The court below erred in entering judgment by default after an appearance by defendant and pleas and affidavit of merits were filed, and issue taken thereon. After issue is joined, the plaintiff, to obtain judgment, must proceed and try his cause by a jury, in the same manner as if the defendant had answered to his name when called. Manlove v. Gallipot, 1 Scam. 390; Covell v. Marks, 1 Scam. 391; Hall v. Marks, 34 Ill. 358; Mason v. Abbott, 83 Ill. 445. The judgment is reversed and the cause is remanded. Reversed and remanded.