{
  "id": 2777031,
  "name": "Louis L. Loeb, Defendant in Error, v. Leo. A. Loeb et al., Plaintiffs in Error",
  "name_abbreviation": "Loeb v. Loeb",
  "decision_date": "1912-05-23",
  "docket_number": "Gen. No. 16,537",
  "first_page": "492",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T20:25:54.735908+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Louis L. Loeb, Defendant in Error, v. Leo. A. Loeb et al., Plaintiffs in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Fitch\ndelivered the opinion of the court.\nDefendant in error (hereinafter called the plaintiff) brought suit in the Municipal Court against plaintiffs in error (hereinafter called the defendants) to recover the amount of a balance of $254.97 claimed to be due on two promissory notes for $250 each, signed by defendants and payable to the order of plaintiff two and three months, respectively, after the date thereof and the amount of- the protest fees paid. With the statement of claim, plaintiff filed an affidavit of the amount due, made by Sidney Adler, who states that he is \u201cthe attorney and agent of the plaintiff.\u201d Defendants entered their written appearance by attorney and demand for a jury trial, and, a,t the same time, filed an affidavit of merits to the whole of the plaintiff\u2019s demand, alleging, as their defense, that the plaintiff had \u201cfailed to return a certain promissory note previously paid by the defendants.\u201d On motion, this affidavit was stricken from the files, and three days\u2019 time was given to file another. The next day, defendants filed a similar affidavit to the same effect, with more words. On motion, this was also stricken, and three days more were given to file another. A third affidavit was then filed stating that \u201cthere is not due upon said promissory notes * * * the sum of $254.97 and there is no sum of money due * * * for protest fees advanced.\u201d On motion, this affidavit was also stricken from the files and defendants were given two days to file an amended affidavit, but none was filed. Five days later, defendants moved to strike the plaintiff\u2019s affidavit of claim from the files. The court denied this motion, and on the counter-motion of the plaintiff, entered a default against the defendants for want of an affidavit of merits. A month later a jury trial was had and a verdict and judgment entered against defendants for $262 and costs, from which they have prosecuted this writ of error.\nIt is first claimed that under Section 55 of the Practice Act, an affidavit of plaintiff\u2019s claim must be made by the plaintiff in person, and cannot be made by an agent or attorney of the plaintiff. The law is well settled that such an affidavit may be made by any one cognizant of the facts. Young v. Browning, 71 Ill. 44; Bank of Chicago v. Hull, 74 Ill. 106; Wilder v. Arwedson, 80 Ill. 435; Honore v. Home National Bank, id. 489; Brigham v. Atha, 84 Ill. 43; Garrity v. Lozano, 83 Ill. 597.\nIt is also assigned for error, but not discussed in the briefs, otherwise than by the mere mention of the point, that the court erred in striking the several \u2018 \u2018 affidavits of merits\u201d from the files and in entering default for want of a proper affidavit. We fail to see any error in the action of the court in this regard. Defendants\u2019 affidavits were clearly insufficient, and were therefore properly stricken. The right of-the plaintiff to judgment followed. New York Exchange Bank v. Reed, 232 Ill. 123, 125.\nSeveral minor points are raised, but we find none of them well taken.\nThe judgment will be affirmed.\nJudgment affirmed.",
        "type": "majority",
        "author": "Mr. Justice Fitch"
      }
    ],
    "attorneys": [
      "Sidney N. Ware, for plaintiffs in error.",
      "Adler & Lederer, for defendant in error."
    ],
    "corrections": "",
    "head_matter": "Louis L. Loeb, Defendant in Error, v. Leo. A. Loeb et al., Plaintiffs in Error.\nGen. No. 16,537.\n1. Practice\u2014when affidavit of claim sufficient. An affidavit of plaintiff's claim may be made by agent or attorney.\n2. Practice\u2014when affidavit of merits properly stricken. If an affidavit of merits interposed by a defendant is insufficient it is properly stricken and the right of the plaintiff to judgment necessarily follows.\nError to the Municipal Court of Chicago; the Hon. Henry C. Beitlbr, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.\nAffirmed.\nOpinion filed May 23, 1912.\nSidney N. Ware, for plaintiffs in error.\nAdler & Lederer, for defendant in error."
  },
  "file_name": "0492-01",
  "first_page_order": 510,
  "last_page_order": 512
}