Myers v. Shoneman, 90 Ill. 80 (1878)

Sept. 1878 · Illinois Supreme Court

90 Ill. 80

Samuel Myers v. Benjamin Shoneman et al.

1. Practice—affidavit of merits to plea. An appeal bond given on appeal to the Supreme Court, from a money judgment, is a contract for the payment of money, within the meaning.of the Practice act, requiring the defendant to file an affidavit of merits with his plea, when the plaintiff attaches an affidavit of his claim to his declaration.

2. Abbreviations—do not vitiate fee bill if intelligible. Where the defendant is defaulted, and the cause is heard before the court without a jury, a fee bill will not be rejected as unintelligible if the abbreviations therein can be understood by the court.

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

This was an action of debt, brought upon an appeal bond, by Benjamin Shoneman and Samuel Shoneman, against Samuel Meyers and Peter J. Clausen.

The following ie a copy of the plaintiff’s fee bill, referred to in the opinion :

“ 1871. Mch. T. App. and atty. 15: fil. prase. 5; fil. nar and copy, 10. .30

“ Sum’s and fil. 40...............................................................40

“ Ap’l to Nov. terms, each T. fee 50........................................ 4.00

“ Dec. T. T. fee 50................................................................50

1872. Jan’y to July terms, each T. 50: fil. new nar......................... 3.50

“ F. e. 10; fil. not, 5; ent. rule to plead, 20...............................35

§2.00 1872. Aug., Sept, and Nov. terms, each T. fee 50.....

.20 “ Ent. leave to file sev’l replic’s, 20................

.25 “ Fil. do....................................................

1.00 “ Nov. and Dec. terms, each T. fee 50..............

3.70 1873. Jan’y to July terms, each T. 50; ent. slip. 20.

.05 “ Fil. do. 5.................................................

2.00 “ Aug. to Nov. terms, each T. fee 50................

.50 “ Dec. T., T. fee 50.......................................

1.00 1874. Jan’y to Feb’y T., T. fee, 50; reo. and ent......

.45 “ Find. 10; serv’g writ, 10; ent. judg. 25........

.75 “ Doc. 10; ex. and fil. 45; doc. 10; ret. 10........

.55 « Sat. 15: 2 Index, 20...................................

.30 “ M. and Ec...............................................

........ . §21.00 Judge’s fee, §2.50, paid.

“I, John J. Healey, clerk of the Superior Court of Cook county, do hereby certify that the above is a true copy from my fee book.

“John J. Healey.”

Mr. William H. King, for the appellant.

Messrs. Rosenthal & Pence, for the appellees.

Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action, brought upon an appeal bond given on appeal to this court, from a money judgment recovered in the Superior Court of Cook county, for $2683 and costs. An affidavit of claim was filed with the declaration. A plea of non est factum, not sworn to, filed by the defendant, Myers, was, on motion of the plaintiffs, stricken from the files by the court below because no affidavit of merits was filed 'with the plea, and the default of the defendant was entered, and judgment rendered against him, from which he appealed.

The striking of the plea from the files is assigned for error, upon the ground that the suit was not upon a contract for the payment of money. This precise question was decided by this court in the case of Coursen v. Browning, 86 Ill. 57, where it was held that an appeal bond given upon an appeal from a money judgment was a contract for the payment of money.

It is objected, that the fee bill, or the plaintiff’s bill of costs, in the case in the Superior Court, was improperly admitted in evidence, because unintelligible.

The abbreviations therein appearing would be understood by the court, before whom, without a jury, the cause was tried. There is no force in the objection. ,

The judgment is affirmed.

Judgment affirmed.