Garden City Insurance v. Stayart

Citations

• 79 Ill. 259

Syllabus

<p>1. Record of court—presumption that clerk performs his duty. Where a record is filed in the Supreme Court, containing a prsecipe, summons and return thereon, a default, assessment of damages and judgment, but no declaration, and a supplemental record is filed, containing a declaration in the case, without any file-marks, the presumption being that the clerk performs his duty in every case, it must he presumed that the declaration was not filed.</p> <p>2. Practice'—¿tore# a declaration nunc pro tunc. On the 7th of November, 1872, a judgment by default was rendered, and, in February, 1875, the plaintiff asked leave to file a declaration nunc pro tunc as of October 25,1872, and, in support thereof, filed the affidavit of a clerk of the attorney for the plaintiff, to the effect that the attorney had prepared and given to the affiant a declaration in the cause, and that he, the affiant, had taken the same to the clerk of the court and ■ given it to him, and requested him to file it, on the 25th of October, 1872, and that the clerk took and kept it in his control, and affiant supposed he had filed it. The attorney of the plaintiff also made affidavit that a declaration then in the wrapper containing the files in the case was the same that he drew and gave to his clerk to have filed in the case. On the other hand, the affidavit of a party was filed, stating that, during the months of September and October, 1872, there were many suits brought against the defendant, and he was employed to watch them, and examine and ascertain their condition, and tliat he prepared and kept a docket, in which he noted the condition of the suits; that., on the 10th of November, 1872, he examined the files, as he had frequently done before; that there was in his said docket a memorandum, in his own handwriting, showing that no declaration in this case was on file November 10, 1872; that such memorandum was the result of a personal inspection, and that, at that time, he saw no declaration amo