Flanders v. Whittaker, 13 Ill. 707 (1852)

June 1852 · Illinois Supreme Court

13 Ill. 707

Jesse Flanders et al., Plaintiffs in Error, v. Franklin Whittaker, Defendant in Error.

ERROR TO McHENRY.

A defendant who has been ruled to plead by a particular day, cannot file a plea after the expiration of the rule, without special leave for that purpose; and if a plea is put on the files without first obtaining such leave, the court may disregard the plea, and render judgment.

The judgment, to reverse which this writ of error is brought, was rendered by Wilson, Judge, at the April term, 1851, of the McHenry Circuit Court.

The facts of the case will be found in the opinion of the court.

C. McClure, for plaintiffs in error.

Church & Willard, for defendant in error.

Treat, C. J.

This was a proceeding by scire facias to foreclose a mortgage. The defendant was ruled to plead by a particular day. He filed a demurrer to the scire facias, after that day had passed. A judgment by default was subsequently entered against him. The rendition of that judgment is now assigned for error. The defendant had no right to plead after the expiration of the rule, without the special leave of the court. The demurrer was put on the files without first obtaining such leave, and it was very properly disregarded by the court. The plaintiff was as much entitled to a judgment by default when the demurrer was filed, as he was at the moment the rule to plead had expired.

The judgment is affirmed. Judgment affirmed.