Mason v. McNamara

Citations

• 57 Ill. 274

Syllabus

<p>1. Practice—whether the exercise of discretionary power will he reviewed in an appellate eowrt. While, as a general rule, this court will not review the action of the lower courts in matters of discretion, still, cases may arise m which there has been such a state of facts as to call upon this court to interpose, to promote justice, by reviewing the decision of the circuit court, even in the exercise of discretionary power.</p> <p>2. Notwithstanding it is a matter of discretion in the circuit court whether a default should be set aside, cases may arise iu which the exercise of such discretion will be reviewed by an appellate court.</p> <p>3. Same—insetting aside defaults. The long and well settled practice in this State, has been liberal in setting aside defaults at the term at which they were entered, when it appears that justice will be promoted thereby. The practice has not been so rigid as to require the party moving to set the default aside, to bring himself within the strict rules which govern applications in equity for new trials at law.</p> <p>4. But when it appears by the affidavit filed in support of the motion, that the party has a defense to the merits, either to the whole or a material part of the cause of action, it has been usual to set aside the ’ default, if a reasonable excuse is shown for not having made the defense.</p> <p>5. Though it has also been the practice to impose reasonable terms upon the defendant as a condition to allowing bis motion, such as that he plead to the merits, that he pay the costs, or that he comply with such other reasonable terms as may be imposed.</p> <p>6. In such cases the object is that justice be done between the parties, and not permit one party to obtain and retain an unjust advantage.</p> <p>7. Sake—judgment of the ewcuit court refusing a motion to set aside a default, reversed in a given case. On motion in the circuit court to set aside a default, at the term at which it was entered, based on the affidavit of