Rubin v. Raynor, 181 Ill. App. 403 (1913)

June 24, 1913 · Illinois Appellate Court · Gen. No. 17,541

181 Ill. App. 403

Sol Rubin, Moses H. Rubin and Abraham M. Rubin, copartners as Rubin Bros. Mfg. Co., Defendants in Error, v. LeRoy Raynor, Plaintiff in Error.

Gen. No. 17,541.

1. Nonsuit—when defendant entitled to. Under section 32 of the Practice Act, when, no declaration is filed ten days before the second term of court, defendant is entitled to judgment as in the case of non-suit.

2. Judgments—default. Under section 32 of the Practice Act no default can properly be taken against a defendant when no declaration is filed before the second term of court, since the court has no right to enter any order other than one of nonsuit against plaintiff.

Error to the Superior Court of Cook county; the Hon, Theodobe Brentano, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1911.

Reversed and remanded.

Opinion filed June 24, 1913.

Percival Steele, for plaintiff in error; Harvey L. Cavender, of counsel.

No appearance for defendants in error.

Mr. Presiding Justice Clark

delivered the opinion of the court.

Suit was brought by the defendants in error against the plaintiff in error and one Tice, as codefendant, summons being returnable to the February term of court, the first day of the term being Monday, February 2, 1903. Service was had on Eaynor on January 30th, but no declaration was filed until March 24, 1903, the first day of the March term being March 3, 1903. The original declaration seems to have been lost. A copy was filed April 10,1907, and judgment rendered thereon against Eaynor and the codefendant Tice, jointly, on or about that date. No declaration having been filed ten days before the second term of court, namely the March term, 1903, the plaintiff in error was, under the provisions of section 18 (now 32), chapter 110, B. S., entitled to judgment as in the case of nonsuit. Tice pleaded to the declaration, but no default was taken as against Eaynor, and properly could not have been, the court having no right to enter any order other than one of nonsuit if that had been asked.

The judgment will be reversed and the cause remanded.

Reversed and remanded.