#### M. Cohen, Defendant in Error, v. Joe Davis, Plaintiff in Error.

Gen. No. 18,279.

Judgments, § 106*—when default is proper. Under Municipal Court rule 17, as to filing an affidavit of merits, a judgment by default is properly rendered against a defendant upon his failure to file a sufficient affidavit of merits.

Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.

Affirmed.

Opinion filed October 15, 1913.

*457Behjamin E. Cohen, for plaintiff in error.

No appearance for defendant in error.

Mr. Justice Baume

delivered the opinion of the court.

In a case of the fourth class, brought in the Municipal Court by defendant in error against plaintiff in error to recover thirty-nine dollars, plaintiff in error, having failed to file an affidavit of merits or defense, was defaulted for such failure, and thereupon judgment was rendered against him for the amount claimed.

It is insisted by plaintiff in error that “a defendant in the Municipal Court in a fourth class case cannot be defaulted, except for the want of a written appearance. ’ ’

A somewhat similar question was involved in Mc-Whinney v. Gill, 167 Ill. App. 582, and determined adversely to the contention of plaintiff in error.

Buie 17 of the Municipal Court, in force at the time the judgment in question was rendered, provides that the affidavit of merits required to be filed thereunder shall in fourth class cases be filed with the defendant’s appearance and that if the defendant fails to file an affidavit of merits, such as is required by the rules of said court, the plaintiff shall be entitled to default and judgment upon his affidavit of claim on file in said cause, or upon such further evidence as the court may require.

There is no merit in the contention of plaintiff in error. Upon the failure of plaintiff in error to file a sufficiént affidavit of merits or defense, a judgment by default was properly rendered against him. It is not claimed by plaintiff in error that he has a meritorious defense to the action. The judgment is affirmed.

Judgment affirmed.