Daniels v. Fifth National Bank

Citations

• 65 Ill. 409

Syllabus

<p>1. Pbactice—loss or destritetion of files—defcmlt. After the destruction of the records and files of the court by fire, among which were those of an ejectment suit, the plaintiff’s attorney filed his affidavit, showing the time of the commencement of the suit, issuing of summons, service upon defendant and plea by the latter, and showing the cause to have been at issue; also that the affiant had substantial copies of the papers which had been filed. The plaintiff, under leave of the court to file a substantial copy, filed a new declaration. In a few days after this, the court entered a rule on the defendant to plead by a day named, and on the next day after the expiration of the rule, rendered judgment against the defendant by default: Held, that 1he court erred, as the defendant had once pleaded, and there was an issue of fact for trial.</p> <p>2. On failure of a defendant to file another plea in place of one that has been destroyed, in compliance with the rule of the court, the court can do no more than to allow the plaintiff to supply the plea. In such a case the court can not properly give judgment against the defendant by default for want of a plea.</p>