Block v. Mikola , 1913 Ill. App. LEXIS 426 ( 1913 )

Mr. Justice Brown

delivered the opinion of the court.

This judgment must be reversed and the cause remanded to the Superior Court.

By the Practice Act as it existed before July 1,1907, when the Act of June 3, 1907, entitled “An Act in relation to practice and procedure in courts of record,” went into effect, the plaintiff, who had filed an affidavit of claim in a contract suit was entitled to judgment as in case of default on account of the absence of a defendant’s affidavit of merits, only when the defendant was a resident of the county in which the suit was brought.

The defendants in this cause were not residents of Cook county nor of Illinois, and when this suit was brought, and when the declaration and plea were respectively filed, no affidavit of merits on their part was necessary to prevent a default. The unverified plea was sufficient for that purpose.

The Act of June 3, 1907, (J. & A. ft 8592), re-enacted the provision for judgment as in case of a default if an affidavit of merits was not filed in response to an affidavit of plaintiff’s claim, omitting the condition that the defendants must be residents of the county.

The Act of June 3, 1907, also expressly repealed the former Practice Act and the various amendments thereto.

When the cause was called for trial and the motion, made for a judgment as by default because of the absence of an affidavit of merits, the later act was in force.

But it is unnecessary for us to decide whether it was so far retroactive as to apply to suits begun before it went into effect. We hold that either it was inapplicable, and that no affidavit of merits was necessary to prevent the default, or that the motion of defendants for leave to file such an affidavit, which was certainly not necessary when their plea was filed, should have been allowed.

The judgment is reversed and the cause remanded to the Superior Court.

Reversed and remanded.