Sauer v. Cohien, 208 Ill. App. 432 (1917)

Aug. 7, 1917 · Illinois Appellate Court · Gen. No. 6,438

208 Ill. App. 432

Fred Sauer, Appellant, v. Isaac Cohien and Rachel Cohien, Appellees.

Gen. No. 6,438.

(Not to he reported in full.)

Abstract of the Decision.

1. Pleading, § 153 ^* —when affidavit of merits is insufficient. An affidavit of merits by defendants that they believed they had good defense to the whole of plaintiff’s demand, held good under the Practice Act prior to July 1, 1907, hut insufficient under section 55 of the present Practice Act (J. & A. If 8592), in not stating the nature of defense.

2. Pleading, § 313*—when affidavit of merits is insufficient because not swearing as to truth of specified items. An affidavit of merits by defendants’ attorney and agent that he believed defendants had good defense to the whole of plaintiff’s demand and stating that defendants would give in evidence that plaintiff was indebted to defendants at commencement of the action in a certain amount composed of certain specified items and that such amount arose out of plaintiff’s demand, held insufficient under section 55 of the Practice Act (J. & A. If 85.92), in not swearing to the truth of the specified items.

Appeal from the County Court of Kane county; the Hon. S. N. Hoover, Judge, presiding. Heard in this court at the April term, 1917.

Reversed and remanded.

Opinion filed August 7, 1917.

Statement of the Case.

Action by Fred Sauer, plaintiff, against Isaac Cohien and Rachel Cohien, defendants, to recover for rent due. -From a judgment for defendant for costs upon granting of motion to dismiss for want of prosecution, plaintiff appeals.

Healy & Beverly, for appellant.

Arthur L. Paulson, for appellees; R. S. Egan, of counsel.

* See Illinois Notes Digest, Yols. XI to xy, and. Cumulative Quarterly, same topic and section number.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Dibell

delivered the opinion of the court.

3. Pleading, § 153 ^* —when affidavit of merits insufficiently specifies items of set-off and recoupment. An affidavit of merits held insufficient in specifying items of set-off or recoupment, in an action for rent of a store building.

4. Pleading, § 367*—when affidavit of merits should he stricken from files. A motion to strike defendants’ affidavit of merits from the files and enter judgment for plaintiff for the amount stated in his affidavit of claim, held improperly denied, unless leave should be obtained to file a new affidavit of merits, where such affidavit was insufficient in not swearing to the truth of the items of set-off or recoupment specified therein and in the statement therein of such items, as such affidavit conclusively admitted defendants owed plaintiff the amount stated in his affidavit.