Ralph v. Baxter, 66 Ill. 416 (1872)

Sept. 1872 · Illinois Supreme Court

66 Ill. 416

William J. Ralph v. James Baxter.

1. Judgment by confession—application to set aside. Where the affidavit in support of a motion to set aside a judgment entered in strict accordance with a warrant of attorney, failed to show that the warrant of attorney was not voluntarily given, and for a good consideration, or that it was obtained by fraud or misrepresentation, but the only ground shown was that the judgment included usurious interest, and where the plaintiff voluntarily remitted a sum equal to the usury: Reid, that the court below properly overruled the motion.

3. Action—agreement to extend time of payment. An agreement to extend the time of payment of a debt does not constitute a defense to an action brought before the extension has expired. The defendant can have his action for its breach.

Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

Messrs. Story & King, for the appellant.

"Messrs. Higgins, Swett & Quigg, for the appellee.

Mr. Justice McAllister

delivered the opinion of the Court:

There is nothing in appellant’s affidavit made in support of the motion to set aside the judgment which shows that the warrant of attorney was not voluntarily given, and for a good consideration, or that it was obtained by fraud or misrepresentation. In entering up the judgment on the warrant of attorney, the authority given by it was strictly pursued.

The only ground shown for interfering with the judgment, was, that it was entered up for a sum which included certain items of usury. In this respect it was too large. But, inasmuch as usury would not vitiate the contract except as to the excess, and there was an amount voluntarily remitted by the plaintiff equal to the excess, the court below ruled properly in refusing to set aside the judgment.

No defense was shown to the residue. The agreement to extend the time did not constitute a defense, and none other is pretended. Appellant can have his action for a breach of that agreement, if it was made and violated.

The judgment of the court below is affirmed.

Judgment affirmed.