Kern v. Strasberger

Citations

• 71 Ill. 303

Syllabus

<p>1. Practice— affidavit showing Tinture of demand and amount due—effect of when filed with declaration. The only purpose subserved by the affidavit of the plaintiff showing the nature of his demand, and the amount due, filed with his declaration, is, to entitle him to a judgment, as in case of default, unless the defendant shall file an affidavit of merits with his plea; and in case of such default, the affidavit so filed with the declaration may be taken as prima facie evidence of the amount due, but even this is discretionary with the court.</p> <p>3. Whether the plaintiff will file such an affidavit, is entire]}' optional with himself, and if he does not do so; or files an insufficient one, the only effect such failure can have upon the suit is, that the defendant is entitled to plead without accompanying his plea with an affidavit of merits.</p> <p>3. But, if proper service is had, and the declaration is filed in apt time, the suit stands for trial, and the defendant must enter his appearance and plead, or a judgment may be taken against him by default.</p> <p>4. Presumption in favor of regularity of judgment. Where the court has jurisdiction of the parties and of the subject matter of litigation, every presumption of law is in favor of the regularity of the judgment.</p> <p>5. Evidence — must be preserved by bill of exceptions. In cases at law, evidence can only be preserved in the record by bill of exceptions, and the correctness of the finding of the court below will not be examined in the Supreme Court unless all the evidence upon which the court below acted is thus preserved, and the same principle applies to circuit courts in reviewing the decisions of the county court,</p> <p>6. Appeal from county court to circuit court—remanding order. When a judgment of the county court is affirmed by the circuit court, it is not necessary to remand the cause to the county court for further action. The order affirming the judgment is all that is necessary, and upon fi