Hartford Life & Annuity Ins. v. Rossiter , 98 Ill. App. 11 ( 1901 )

IVIt?.. Justice Waterman

delivered the opinion of the court.

A motion to set aside a default and judgment is addressed to the judicial discretion of the court, and only for an abuse of such discretion will its action thereon be set aside. The affidavits filed below in support of such motion failed to show any sufficient excuse for the failure to plead in time. The affiant states that he was “led to believe” and did believe that no declaration would be filed until his return to Chicago. What led him so to believe, whether the good manners and polite conduct of the plaintiff’s attorney or otherwise, does not appear. Affiant then says that relying upon his understanding with the attorney that no action would be taken he notified the defendant’s attorneys to do nothing until his return to Chicago. . Only inferential ly is there a statement that there was an understanding, while there is a complete failure to set forth what the understanding, if any, was.

The affidavits presented by the defendant below not being such as required the court to set aside the default and judgment, it is immaterial that the court admitted upon the motion, counter affidavits. Nor if the defendant below was, after being allowed an appeal from the order refusing to vacate the judgment, entitled to appeal from the judgment itself, did the refusal to allow such appeal work on him any harm. The entire record of the judgment has been brought to this court and therein we find no error; moreover the defendant below took no exception to the .action of the court refusing to allow such appeal.

If the defendant below had matter occurring upon the entry of default and taking of judgment which he desired to present by bill of exceptions, he should have presented a bill of exceptions and asked the court to sign it; if it had improperly refused so to do, it could, by writ of mandamus, have been compelled to sign a true and proper bill. The defendant below neither did this nor excepted to the action of the court in refusing leave to file a bill of exceptions. Strictly speaking, it is not necessary to obtain leave to file a bill of exceptions save -when the leave required is for time in which to file. The filing is a matter of right. Secs. 42, 60, 61, 62 and 63, Chap. 110, E. S. Defendant below did not ask for time in which to file, nor for time in which to prepare and file. Nor did defendant except to the ruling of the court refusing leave to file.

Finding no error warranting a reversal of the action of the court below, it is affirmed.