Thacker v. Bulkley, 66 Ill. App. 646 (1896)

Nov. 30, 1896 · Illinois Appellate Court
66 Ill. App. 646
James Robert Thacker, sued as Robert Thacker, v. Almon W. Bulkley, Edward E. Gray and Clair E. More, Copartners as Bulkley, Gray & More

James Robert Thacker, sued as Robert Thacker, v. Almon W. Bulkley, Edward E. Gray and Clair E. More, Copartners as Bulkley, Gray & More.

1. Bill op Exceptions—Striking a Plea from the Piles—Where the court improperly strikes a plea from the files the party aggrieved thereby should, by a bill of exceptions, preserve what the court did in this regard.

Assumpsit, on a promissory note. Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Heard in this court at the October term, 1896.

Affirmed.

Opinion filed November 30, 1896.

Statement op the Case.

This was an action in assumpsit upon a promissory note. The plaintiffs filed a special count (first indorsee v. maker) upon a note, together with the common counts and an affidavit of claim. The defendant, Robert Thacker, filed a general demurrer to the declaration. The court below overruled the demurrer. Appellant says that thereupon the court entered a rule on the defendant to plead instan ter; that the defendant thereupon filed a plea of the general issue, properly verified; that on motion of plaintiffs, the court struck this plea of the general issue from the files, on the *647ground that theaffidavit attached to the same was improper, anl rendered judgment against the defendant; that the defendant therefore prayed and was allowed an appeal.

Alfred D. Eddy, attorney for appellant.

Bulkley, Gray & More, attorneys pro se.

Mr. Justice Waterman

delivered the opinion of the Court.

There is in this case no bill of exceptions. If either the note, nor the affidavit of merits said to have been made by the defendant, is before us. Appellant urges that he filed a plea of the general issue, and with it a sufficient affidavit of merits, and that the court improperly struck his plea from the files. If this be so, he should, by bill of exceptions, have presented a record of what he and the court did in this regard. Bowlan v. Lambka, 57 Ill. App. 334; Van Cott v. Sprague, 5 Ill. App. 99; Baldwin v. McClellan, 50 Ill. App. 645. No error appearing, the judgment of the Superior Court is affirmed.