Beardsley v. Gosling, 86 Ill. 58 (1877)

Sept. 1877 · Illinois Supreme Court

86 Ill. 58

Lawrence S. Beardsley v John W. Gosling.

1. Practice — affidavit of merits with pleas. It is not essential that a defendant’s affidavit of merits filed with his pleas should have any caption at all. Any affidavit which conforms to the statute in substance, and can be identified as having been filed in the cause, is sufficient.

2. Where the caption to an affidavit of merits states the State and county where made, though the name of the county is not repeated in giving the title of the court in which the cause is pending, it will be sufficient.

3. The statute has not made it obligatory on a defendant to set out in detail his defense in an affidavit of merits filed with his pleas.

4. Evidence —judicial notice. This court -will take judicial notice that there is hut one court in this State entitled the Superior Court.

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

This was an action of assumpsit by John W. Gosling against Lawrence S. Beardsley on a draft, the declaration containing a special and the common counts. An affidavit of the amount due was filed with the declaration. The defendant filed the general issue, with an affidavit of merits, entitled in the caption as follows : “ State of Illinois, CooTc County, ss. In the Superior Court, of the January term, 1876.” Then follows the-names of the parties. The plea and affidavit were stricken from the files.

Messrs. Haines & Tripp, for the appellant.

Messrs. Holmes, Bich & Noble, for the appellee.

Mr. Justice Scott

delivered the opinion of the Court:

The objection taken to the affidavit of merits filed with defendant's plea is exceedingly technical. It is,that although the State and county where made are stated in the caption, the name of the county is not repeated in giving the title of the court in which the cause was pending. It is stated to be in the “ Superior Court,” and we may take judicial notice there is but one court so entitled in the State. But aside from this view there is nothing at all in the objection insisted upon. It is not essential the affidavit should have any caption, if it conforms to the statute in substance, and can be identified as having been filed in the cause. Without any caption it is nevertheless an affidavit. Harris v. Lester, 80 Ill. 807.

On the hearing of the motion to strike defendant’s jilea from the files, the court announced that unless defendant set out in his affidavit of merits his defense in detail the motion would be sustained. The statute has not made it obligatory upon defendant to do so, and he was not bound to submit to the terms imposed. Hays v. Loomis, 84 Ill. 18. -The judgment will be reversed and the cause remanded.

‘ Judgment reversed.