Schuh v. D'Oench

Citations

• 51 Ill. 85

Syllabus

<p>1. Practice—steps in a cause—record should show the order of time in which they me taken. Where the record shows that a demurrer was filed to the declaration, and a default taken in the same cause, on the same day, but does not show which was the prior act, in the absence of proof as to priority it will be presumed that the default was properly taken, and that no error exists.</p> <p>2. The rights of the defendant who claimed that a demurrer to the declaration was pending at the time the default was taken, could have been preserved, had he, during the term, entered a motion to set aside the default, and proved that a demurrer had been filed in the case before the default was taken; the court then would have set aside the default, and failing to do so, the motion and evidence could have been preserved in the record, and such error would appear as could have been availed of in this court.</p>