Schultz v. Meiselbar

Citations

• 144 Ill. 26
• 32 N.E. 550

Syllabus

<p>1. Setting aside default—sufficiency of affidavit—negligence of attorney. An affidavit filed on a motion to set aside a judgment by default, although it may show a meritorious defense, is insufficient, if it fails to show any other reason why plea was not filed in time, than that the defendant's attorney failed to do so “ through press of business and inadvertence. ” The negligence of the attorney in failing to file a plea, is the negligence of the client.</p> <p>2. Same —for censurable act of plaintiff — not prejudicial to defendant. Two or three weeks before judgment by default, the attorney of the defendant withdrew the declaration and papers in the case, giving his receipt to the clerk of the court therefor. While the papers were still out of the clerk’s office the plaintiff improperly obtained possession of such receipt and took judgment by default. Held, that while the abstraction of the receipt was highly censurable, it afforded no ground for setting aside the judgment by default, such act not interfering prejudicially to the defendant.</p> <p>3. Judgment by default—papers in possession of defendant’s attorney. It is not error to take judgment by default for want of a plea, where the defendant's attorney had withdrawn the declaration and papers from the files two or three weeks before, and still had them at his office. A party can take no advantage by reason of his own improper act.</p>