Gormley v. Uthe , 1 Ill. App. 170 ( 1878 )

Murphy, P. J.

This was an action of assumpsit, commenced in the Superior Court of Cook county, by appellee against appellants. The plaintiff in her declaration counted specially on five promissory notes made by appellants. The declaration also contained the common counts. To this declaration the- appellants filed the plea of non-assumpsit, accompanied by an affidavit of merits. Notwithstanding the objection of the appellants, the court, on motion of the appellee, advanced and tried said cause out of its order on the docket, under and by virtue of a certain rule of practice existing in that court, known as the “ five-day rule.” This is assigned for error by the appellants. This case ■ turns upon the validity of that rule. In Nelson and Benson v. Akeson, at this term, we have passed upon the validity of that rule, and held that the matters to which that rule relates are regulated by the Practice Act of July 1st, 1872, and that the rule, as a consequence, is “ void and of no effect.” The court below took up and disposed of the present case out of its order on the docket, and the judgment must, therefore, he reversed and the cause remanded. '

Judgment reversed.