City of Chicago v. Adams, 24 Ill. 492 (1860)

April 1860 · Illinois Supreme Court
24 Ill. 492
The City of Chicago, Plaintiff in Error, v. Benjamin B. Adams, Defendant in Error

The City of Chicago, Plaintiff in Error, v. Benjamin B. Adams, Defendant in Error.

ERROR TO THE SUPERIOR COURT OF CHICAGO.

The exercise, by an inferior court, of its discretion in setting aside a default, will be rarely interfered with by this court.

This was a special proceeding, on the part of the City of Chicago, to collect an assessment levied for macadamizing West Randolph street from Halsted street to Union Park. The case was tried in the Superior Court of Chicago, and judgment taken by default. Afterwards, defendant in error filed amotion, supported by affidavit, to set aside the default, which was granted, and the collection of the assessment resisted on the same general grounds as in the case of The City of Chicago v. Burtice, ante, 489, and judgment rendered for defendant.

E. Anthony, for Plaintiff in Error.

Hoyne, Miller & Lewis, for Defendant in Error.

Catón, C. J.

We find nothing in the law under which this proceeding was had, which prevented the court from exercising the discretion with which it is vested in all other cases, to set aside a default at the same term at which it is taken, and admit a defense to be made; and there is certainly as much propriety in exercising such power in this as in any other proceeding, when a proper case is made. Indeed, there may be a greater *493necessity for it; for here the parties are not personally served with notice to appear and make defense, but only have constructive notice by advertisement in a newspaper, which may or may not come to their actual knowledge.

This court will rarely, if ever, interfere with the exercise of its discretion by the inferior court, in setting aside a default, and especially so when a default has been set aside, and a successful defense afterwards made.

The other question presented in this case, has been fully considered in the case of The City of Chicago v. Butice, ante, 489, and what is there said will apply with equal pertinence to this case. We find no error in the record.

The judgment is affirmed.

Judgment affirmed.