Flat Top Fuel Co. v. Benjamin , 1911 Ill. App. LEXIS 1044 ( 1911 )

Mr. Justice Baldwin

delivered the opinion of the court.

In this case, there was an affidavit of merits filed by one of two defendants, stating that affiant verily believes both himself and the other defendant, and each of them, has a good defense upon the merits to the whole of plaintiff’s demand, and then setting up such defense, in detail.

The question here to be decided is whether, upon the dismissal out of the case of the defendant making it, such an affidavit ceased to be sufficient for the remaining defendant.

We think Ebbert’s affidavit of merits was clearly on behalf of himself and Benjamin, and that it did not lose its efficacy and protection to Benjamin by the plaintiff dismissing Ebbert out of the case.

The purpose of the statute and of the rules of courts in requiring affidavits of the defendant, or his agent or attorney, disclosing a defense, is to so provide that plaintiff shall pot be delayed in enforcing a claim unless the defendant or some one interested with or for him shall disclose a meritorious defense.

In this case Ebbert had an interest with Benjamin in the defense of the action, and that interest did not cease when he was dismissed out of the suit. Benjamin was only an indorser upon the notes sued upon, and would have had a remedy over against Ebbert, and, Ebbert having had notice of the suit, under the authority of Drennan v. Bunn, 124 Ill. 175, he would have been bound by a judgment against Benjamin.

Defendant in error contends that the affidavit was insufficient because by the dismissal of Ebbert out of the case the action stood as if it originally begun against Benjamin alone, and that the affidavit was insufficient because it did not purport to be made by the defendant (Benjamin), or his agent or attorney.

Upon the record in this ease we think that Ebbert was the agent of Benjamin in the premises, and that the affidavit was entirely sufficient.

Judgment reversed and cause remanded.

Reversed and remanded.