Anderson v. Studebaker, 37 Ill. App. 532 (1891)

Jan. 16, 1891 · Illinois Appellate Court

37 Ill. App. 532

Charles L. Anderson and Charles A. Anderson v. William Studebaker.

Practice—Negotiable Instruments—Notes—Consideration—Failure of.

1. Where judgment is entered upon a judgment note, a court may properly deny the motion of the defendant for a stay of proceedings, and that he be let in to defend upon the ground of failure of consideration, where the showing by affidavit upon the part of the plaintiff that there can be no successful defense to the note, is as strong as that on the part of the defendant that there could be.

2. An appeal in such case brings up the final order only.

[Opinion filed January 16, 1891.]

Appeal from the Superior Court, of Cook County; the Hon. Kirk Hawes, Judge, presiding.

Mr. August Marx, for appellants.

Mr. M. Saloman, for appellee.

Gary, J.

The appellants gave to the appellee judgment notes for the unpaid part of the price of a machine and some lumber. Judgment being entered, they applied to stay proceedings and be let in to defend, upon the ground that there was a breach of warranty as to the machine and consequent failure of consideration. Upon conflicting affidavits the court denied the motion.

There is no statement on their part that the appellee is not pecuniarily able to pay damages, if there was a breach of warranty and consequent damages, so that they are not without remedy, if they are entitled to any. To say the least, the showing by affidavit on the part of the appellee that there could be no successful defense to the notes, was as strong as that on the part of the appellants, that there could be. In such a case it can not be said that the legal discretion of the court was not properly exercised.

The parties have treated this appeal as bringing up the whole case. In fact on’y the final order could properly be so brought. Lake v. Cook, 15 Ill. 353; Frear v. Comm. Nat. Bk., 73 Ill. 473; Hall v. Hamilton, 74 Ill. 437.

The judgment is affirmed.

Judgment affirmed.