{
  "id": 2728924,
  "name": "Joseph Jung Brewing Company, Defendant in Error, v. Gustav Grimm, Plaintiff in Error",
  "name_abbreviation": "Joseph Jung Brewing Co. v. Grimm",
  "decision_date": "1911-06-29",
  "docket_number": "Gen. No. 15,634",
  "first_page": "564",
  "last_page": "571",
  "citations": [
    {
      "type": "official",
      "cite": "162 Ill. App. 564"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "123 Ill. App. 571",
      "category": "reporters:state",
      "reporter": "Ill. App.",
      "case_ids": [
        875706
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app/123/0571-01"
      ]
    }
  ],
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    "simhash": "1:8643eee4a599b2c4",
    "word_count": 2322
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  "last_updated": "2023-07-14T16:09:35.474007+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Joseph Jung Brewing Company, Defendant in Error, v. Gustav Grimm, Plaintiff in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Brown\ndelivered the opinion of the court.\nIn this case there was a motion reserved to the hearing to strike from the transcript of the record the document signed hy the trial judge and purporting to he a full and complete transcript of all the proceedings in the cause that do not appear of record. It is entitled \u201cTranscript of Proceedings.\u201d The cause is a fourth class one, and we think though the transcript of proceedings is not entitled as it should he nor certified to he stenographic, it may properly he considered in compliance with the Municipal Court Act and to be a \u201ccorrect stenographic report.\u201d It is at all events undoubtedly \u201ca correct statement of the proceedings in the case which the plaintiff in error desires to have reviewed.\u201d\nThe motion to strike it from the transcript is denied.\nThe error complained of is that a certain affidavit of merits of defense was stricken from the files over the objection of the defendant. It was the third affidavit which had been adjudged insufficient and thus stricken. Leave was granted, on the court\u2019s so striking it, to file another affidavit in three days. This leave was not taken advantage of by the defendant, who contended that the affidavit thus adjudged insufficient was in fact sufficient to specify \u201cthe nature of the defense\u201d under section 55 of the Practice Act (if such section is applicable to fourth class cases in the Municipal Court) and under rule 13 a of the Municipal Court Act. As the defendant did not file another affidavit, his default was taken and judgment entered against him for $601.69 and costs.\nAlthough it is only the \u201cstriking\u201d of the third and last affidavit of defense filed which is complained of, yet a clearer view of the question involved will he gained by a chronological statement of the preceding papers filed in the case and of their disposition. The plaintiff's original statement of claim filed with his praecipe was simply: \u201cPlaintiff\u2019s claim is for balance due on account,\u201d and the affidavit of claim that followed it repeated the assertion that the claim was for balance due on account and stated its amount to be $602.19.\nUpon the appearance of the defendant he moved for a more specific statement of claim. The motion was allowed. The plaintiff then filed an account which comprehended monthly debits and credits for each month from Hay, 1907, to January, 1909. The first three items were:\n1907 Dr. Or.\nMay To merchandise ............... $308.63\nTo money advanced............ 500.25\nBy credits .................... $297.51\nFollowing these came items under the dates of June, July, August and September, 1907. In each of these months there was a debit item of \u201cMerchandise\u201d and a credit item, \u201cBy credits.\u201d In each case the credit item was considerably larger than the \u201cMerchandise\u201d debit, and at the end of September, 1907, the account would show that an amount had been paid by Grimm equal to the charges for merchandise and $182.17 more to offset against the $500.25 charged as \u201cmoney advanced\u201d in May, 1907.\nIn October, 1907, there are again two items of debit:\nTo merchandise ..................... $218.00\nTo money advanced................... 500.25\nand one of credit:\nBy credits .......................... $515.97\nIn \u00a1November and December, 1907, and January, February and March, 1908, there were in each month one debit, \u201cTo merchandise,\u201d and one credit, \u201cBy credits,\u201d In each case the credit was the larger item, and at the end of March, 1908, although the debit account included the two items of \u201cmoney advanced\u201d ($500.25 each, one in May and one in October, 1907), there was only a debit belance outstanding of $242.56, showing that of the $1,000.50 charged as money advanced $757.94 at least had been repaid. In April, 1908, there were again two debit items, one for merchandise and one of $500.25 for \u201cmoney advanced.\u201d\nIn each month from May, 1908, to September, 1908, there was a debit item for merchandise and a larger item, \u201cBy credits,\u201d and at the end of September, 1908, the entire debit balance shown by the account is $242.13.\nIn October, 1908, there are again two items, one for merchandise of $214, and one for \u201cMoney advanced,\u201d the money item being again $500.25. The \u201cCredits\u201d item for the month was $265. In November and December, 1908, there are debit items \u201cTo merchandise,\u201d and slightly larger \u201cCredits\u201d items. The January, 1909, items, which close the account, are:\nDr. Or.\nTo merchandise....................... $16.00\nBy credits........................... $40.00\nThe sum totals of debits during the entire time from May, 1907, to January, 1909, is $7,270.63, and the credits $6,-668.94, making \u00e1 difference (including the item of $500.25 for money advanced) of $601.69.\nAfter the coming in of this bill of particulars the defendant on February 15, 1909, filed the first affidavit of defense, as follows:\n\u201cThat he has paid to the plaintiff all of the items set forth in the bill of particulars except $101.44 and the item under date of October, 1908, 'to money advanced $500.25 that as to the whole of said item he has a defense upon the merits; that deducting said item there was due from him to the plaintiff at the time of the bringing of this suit the sum of $101.44, which sum this defendant now offers to pay.\u201d\nThe 55th section of the Practice Act as revised in 1907 and a rule of the Municipal Court in force in 1909 provided that in cases where an affidavit had been filed by the plaintiff showing the nature of his demand and the amount due him, he would be entitled to a default judgment unless the defendant filed an affidavit that he verily believed that he had \u201ca good defense to said suit upon the merits to the whole or a portion of the plaintiff\u2019s demand, and specifying the nature of such defense, and if a portion specifying the amount according to the best of his judgment and belief.\u201d\nThe Municipal Court evidently held, and we think correctly, that as the nature of the defense must be specified, the affidavit would not be sufficient to prevent a default unless it showed a meritorious defense. Cavanaugh v. Witte Gas Co., 123 Ill. App. 571. We do not think that there is any real difference between the contentions of the plaintiff and of the defendant in this regard.\nThe affidavit, says the plaintiff in his argument, must show \u201ca defense which if true would be good in law and which if set forth in the form of a plea would be good as against a general demurrer.\u201d\nThe defendant admits in his argument that the affidavit of merits must contain \u201can informal intelligent statement of facts indicating to the court a meritorious defense,\u201d, or as he puts it in another place, \u201cAn \u2018informal, intelligent statement of some facts which if true would prevent a recovery.\u201d\nThere is nothing of that sort in the affidavit which was filed on February 15, 1909, and it was on motion of the plaintiff on March 31, 1909, stricken from the files. Defendant was given one day by the same order to file an amended affidavit of merits. April 1, 1909, the defendant filed an affidavit \u201cthat as to the item in the plaintiff\u2019s account under date of October, 1908, \u2018To money advanced $500.25,\u2019 the plaintiff did not advance the said sum of money to or for this defendant, but did advance the said sum of money in payment for the City Saloon License under an arrangement whereby the said plaintiff was to pay the license of the said defendant if the said defendant would continue to buy the beer of the said plaintiff, and the said defendant did thereafter continue to buy the beer of said plaintiff in accordance, with said agreement so long as said plaintiff kept its agreement.\u201d\nThis affidavit was also on motion of plaintiff stricken from the files April 3, 1909, and defendant again given leave to file an amended affidavit within three days. The reason is apparent. It was held by the court that \u201cIt was not an intelligent statement of facts which if true would prevent a recovery.\u201d In our opinion, however, it came more nearly to being such a statement than the subsequent one did, because it stated, among other things, that the plaintiff \u201cdid not advance the said sum of money to or for this defendant.\u201d But viewed in connection with the bill of particulars or amended statement of claim, to which it refers and must be referred, and the evident advance and repayment each six months of the same amount of $500.25 between May, 1907, and January, 1908, the court evidently found the use of the word \u201cadvance\u201d ambiguous, and the defendant\u2019s statement that plaintiff \u201cadvanced\u201d the said sum in payment of the City Saloon License not to negative the obligation of the defendant to repay it, especially as the concluding clause of the affidavit, to the effect that the said defendant \u201cdid thereafter continue to buy the beer of said plaintiff in accordance with said agreement so long as said plaintiff kept its agreement,\u201d seems to refer to previous \u201cadvances\u201d by the plaintiff, which the defendant had impliedly admitted in his first affidavit of defense (as he did expressly afterwards in the third one) to be \u201cjust\u201d charges.\nOn April 7, 1909, the defendant filed his third affidavit of merits, the striking of which from the files on April 10, 1909, the defendant is complaining of herein. That affidavit, after stating that the defendant verily believes that he has a good defense on the merits to a portion of the plaintiff\u2019s demand, proceeds:\n\u201cAffiant further says that the defense of the defendant to said portion is as follows:\nThat the item of October, 1908, amounting to $500,25, referred, to in plaintiff\u2019s statement of claim, was paid by the plaintiff to the City for a City Saloon License as the consideration of the promise of the defendant to the plaintiff to continue to buy the beer of the plaintiff; that the defendant did thereafter continue to buy the beer of the plaintiff in accordance with said promise until to-wit, January 1909, on which last said date the plaintiff demanded of the defendant said amount so paid. The defendant admits that the balance of the plaintiff\u2019s claim, $101.44, is just and is due the plaintiff, which last sum this defendant now offers to pay. On last mentioned date the plaintiff refused to sell the defendant any more beer unless said item of $500.25 was paid and until said item was paid to the plaintiff.\u201d\nCounsel for plaintiff in error say in their argument:\n\u201cThe plain meaning of the third affidavit is this: In consideration of the plaintiff in error promising to continue to buy his beer from the defendant in error instead of the latter\u2019s competitors, the defendant in error would give to the former the sum of $500.25, not merely as an advancement or a loan, but absolutely and with the intention to pass title.to the said sum of $500.25 forever and with the full knowledge and understanding that said sum was never to be repaid, and instead of giving said sum to the plaintiff in error in person, the defendant in error was to give it to the City for the benefit of the plaintiff in error to pay for his saloon license.\u201d\nIf this had been the plain meaning of the affidavit, to strike it from the files would have been an abuse of discretion on the part of the trial judge, and although it was a matter of practice in the Municipal Court, and the defendant refused to avail himself of the leave given to him to file another amended affidavit in three days, we might have deemed it such an error as needed relief to prevent \u201ca failure of justice.\u201d But we do not think that considered in connection with what had gone before in the case this was the plain meaning of the affidavit. It seems to us, in that view, somewhat ambiguous and evasive. There is great force in the question put by defendant in error\u2019s counsel in his argument: If the affiant meant the affidavit to have the meaning which his counsel now puts on it, why did he not put it in the unmistakable words he now employs, especially when he was given three days to do it after this affidavit was adjudged insufficient ?\nWe do not think it is necessary to interfere with this ruling of the Municipal Court \u201cto prevent a failure of justice,\u201d nor are we \u201csatisfied the judgment resulted from substantial errors\u201d of the Municipal Court. It is therefore affirmed.\nAffirmed.",
        "type": "majority",
        "author": "Mr. Presiding Justice Brown"
      }
    ],
    "attorneys": [
      "Benson Landon and Arthur C. Bachrach, for plaintiff in error.",
      "Frederick H. Wickett, Frederick J. Wegg and Andrew A. Bruce, for defendant in error."
    ],
    "corrections": "",
    "head_matter": "Joseph Jung Brewing Company, Defendant in Error, v. Gustav Grimm, Plaintiff in Error.\nGen. No. 15,634.\n1. Municipal Court\u2014when stenographic report not stricken. Complete formality is not required of the document signed by a judge; if such document is either \u201ca correct stenographic report\u201d or \u201ca correct statement of the proceedings\u201d it will not be stricken.\n2. Judgments\u2014when affidavit of merits will not prevent default. Unless the affidavit of merits interposed shows a meritorious defense, a default may properly be entered.\n3. Practice\u2014when striking affidavit of merits will not reverse. Even though an affidavit of merits which has been stricken so closely approaches to fulfilling the requirements of the law as to indicate that a failure of justice may have taken place, the Appellate Court will not reverse where -.the defendant has failed to avail himself of an opportunity given to file an amended affidavit.\nError to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in this court at the October term, 1909.\nAffirmed.\nOpinion filed June 29, 1911.\nBenson Landon and Arthur C. Bachrach, for plaintiff in error.\nFrederick H. Wickett, Frederick J. Wegg and Andrew A. Bruce, for defendant in error."
  },
  "file_name": "0564-01",
  "first_page_order": 584,
  "last_page_order": 591
}