Fisher v. National Bank of Commerce

Citations

• 73 Ill. 34

Syllabus

<p>1. Practice—rule of court for trying cause out of its order on docket. A rule of court whereby an action ex contractu may be brought to trial out of its order on the docket, upon the affidavit of the plaintiff, his attorney or agent, of a belief that the defense is made for delay, and notice to the defendant or his attorney, unless it is made to appear, by affidavit of facts in detail, that the defense is made in good faith, is void, as being inconsistent with the practice in such cases provided by statute. •</p> <p>3. Same—affidavit for speedy judgment. To entitle the plaintiff to judgment by default in an action ex contractu, unless the defendant should file an affidavit that he believes lie has a good defense, under sec. 36 of the Practice Act of 1873, the plaintiff must file with his declaration an affidavit, showing the nature of his demand and the amount due him from the defendant, after allowing to him all his just credits, deductions and set-offs. An affidavit by the plaintiff’s attorney, that he believes the defense is made only for delay, is wholly insufficient to require any affidavit of merits from the defendant.</p> <p>3. Same—must he uniform. Under the constitutional provision requiring that the practice in all courts of the same class or grade shall be uniform, so far as regulated by law, where the practice in any respect is regulated by statute, the courts are prohibited from adopting rules inconsistent with such practice.</p>