Cedvilas v. Sinkus

Mr. Presiding Justice Holdom delivered the opinion. of the court. This writ of error is undefended. On December 19, 1916, a judgment hy default for $200 was entered against defendant and in favor of plaintiffs. Ten days thereafter defendant moved to vacate the judgment. This motion was allowed and the judgment vacated and the cause reinstated. At the same time, and as a part of the same order, the amended statement of claim was stricken from the files and plaintiffs were ordered to file an amended statement of claim within 5 days and defendant was ordered to file an affidavit of merits thereto within 5 days thereafter. Plaintiffs filed an amended statement of claim within the time ruled, but defendant failed to file any affidavit of merits or to interpose any other defense. The judgment sought to be reversed by this writ of error was entered February 5, 1917, by default for want of an affidavit of merits or other defense being interposed by defendant to the amended statement of claim. These facts are not in dispute, but defendant insists that no judgment by default could be taken while his former affidavit of defense remained in the record, and relies in this contention upon Hine Bros. Co. v. Adams, 139 Ill. App. 92, which case is clearly distinguishable from the instant case. The original judgment was vacated on defendant’s own motion. It was upon terms, one of which was that defendant should file an affidavit of merits within the time fixed by the order granting his motion. The terms upon which the original judgment was set aside disposed of all the previous pleadings. The cause started afresh, as it were, with a new statement of claim, to which defendant was ruled to answer by filing within 5 days after this latter statement of claim was filed an affidavit of merits. Failing to comply with this condition, defendant was in default and judgment was rightfully entered against him. Furthermore, we hold that the statement of claim stated a cause of action and that the affidavit of defense originally filed by defendant did not state a meritorious defense to such action. Therefore the judgment of the Municipal Court is affirmed. Affirmed.