Braidwood v. Weiller

Citations

• 89 Ill. 606

Syllabus

<p>1. Practice—trying case out of Us order on docket. The “ five-day rule ” of the Superior Court of Cook county, whereby a cause may be brought to a speedy trial before it is reached on the regular call of the docket, upon the affidavit of the plaintiff’s attorney, is void, as being inconsistent with the general Practice act, and it is error to take up and dispose of a case, under such rule, out of its order on the docket, against the defendant’s objection.</p> <p>2. Same—shifting grounds upon error. Where a plaintiff, filing an affidavit of his claim with his declaration, afterwards proceeds, by affidavit, for a speedy trial, under a five-day rule which is void, and under that procures a trial of the cause out of its order, he can not, on appeal or error, change his ground and insist that he was entitled to judgment for want of an affidavit of merits to the defendant’s plea.</p> <p>3. Same—when no affidavit of merits is filed. The usual way of taking advantage, under the Practice- act, of the want of an affidavit of merits accompanying the defendant’s plea, where the plaintiff has made an affidavit of his claim, is by motion for judgment as in case of a default, or to strike the plea from the files.</p>