{
  "id": 5406033,
  "name": "Gustave Fingado, Appellee, v. Wilson Braiding & Embroidering Company, Appellant",
  "name_abbreviation": "Fingado v. Wilson Braiding & Embroidering Co.",
  "decision_date": "1917-04-10",
  "docket_number": "Gen. No. 22,300",
  "first_page": "267",
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  "last_updated": "2023-07-14T17:46:37.056812+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Gustave Fingado, Appellee, v. Wilson Braiding & Embroidering Company, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Justice McDonald\ndelivered the opinion of the court.\nAppellee, Gustave Fingado (plaintiff below), recovr ered a judgment against the Wilson Braiding & Embroidering Company for $1,928.78, to reverse which this writ of error is prosecuted.\nPlaintiff in his statement of claim alleged that the account sued upon had been assigned to him for a valuable consideration. The statement of claim was supported by the affidavit of plaintiff\u2019s attorney, wherein he alleged that the plaintiff was then the actual bona fide holder of said account.\nDefendant filed an affidavit of merits, in which it disclaimed any and all knowledge or notice of the supposed assignment of the account in question, and stated upon information and belief that plaintiff was not the actual bona fide owner thereof, and that said account was not assigned to plaintiff for a good and valuable consideration.\nOn motion of the plaintiff, defendant\u2019s affidavit of merits was stricken from the files. Defendant made a countermotion to strike plaintiff\u2019s statement of claim from the files, which was denied by the court, and defendant having elected to stand by its affidavit of merits, its default was taken and the judgment in question entered against it.\nThe question here presented for determination is whether or not plaintiff\u2019s attorney had the right to make the affidavit required by statute, in support of plaintiff\u2019s claim.\nSection 18 of the Practice Act, ch. 110, Eev. St. of Illinois (J. & A. 8555)j is in part as follows:\n\u201cThe assignee and equitable and bona fide owner of any chose in action not negotiable heretofore or hereafter assigned, may sue thereon in his own name, and he shall in his pleading on oath, or by his affidavit, where pleading is not required, allege that he is the actual bona fide owner thereof, and set forth how and when he acquired title,\u201d etc.\nThis provision of the statute being in derogation of the common law, it must be strictly construed, and a strict compliance therewith is indispensable. (Edwards & Bradford Lumber Co. v. Bontjes, 193 Ill. App. 392; Leemon v. Grand Crossing Tack Co., 187 Ill. App. 247.) One of the requirements of the provisions of the act in question is that the assignee shall, in his pleading, on oath or by his affidavit, where pleadings are not required, allege that he is the actual bona fide owner of the chose in action. The obvious reason therefor is that such information is peculiarly within the knowledge and conscience of the assignee alone. \u00a1\nThe statement of claim in question being unsupported by plaintiff\u2019s personal affidavit, it failed to state a cause of action under section 18, supra, and hence the court erred in denying defendant\u2019s motion to strike same from the files. Hadden v. Larned, 83 Ga. 636; Shattuck v. Myers, 13 Ind. 46; Hinkle v. Lovelace, 204 Mo. 208.\nIn our opinion, defendant\u2019s said motion was sufficiently definite and specific to reach this objection.\nIn this view of the case, it becomes unnecessary to pass upon the other points raised.\nThe judgment will be reversed and the cause remanded.\nReversed cmd remanded.",
        "type": "majority",
        "author": "Mr. Justice McDonald"
      }
    ],
    "attorneys": [
      "Barer & Holder, for appellant; G. Raymond Collins, of counsel.",
      "Henry M. Goldsmith, for appellee."
    ],
    "corrections": "",
    "head_matter": "Gustave Fingado, Appellee, v. Wilson Braiding & Embroidering Company, Appellant.\nGen. No. 22,300.\n1. Assignments, \u00a7 33 \u2014when pleading not supported by personal affidavit as to ownership of assigned claim is defective. In an action in the Municipal Court upon an account, where plaintiff\u2019s statement of claim alleged an assignment of the account to him for valuable consideration, and was supported by the affidavit of plaintiff\u2019s attorney which alleged that the plaintiff was then the actual bona fide holder of the account, and the defendant, in his affidavit of merits, disclaimed knowledge of the supposed assignment and stated .upon information and belief that the plaintiff was not the actual bona fide owner and holder of the account, and defendant\u2019s affidavit was stricken from the files and its countermotion to strike plaintiffs statement was denied, and, upon the defendant\u2019s electing to stand by its affidavit of merits, default was taken and judgment entered, held that in failing to support his statement of claim by his personal affidavit as required by section 18 of the Practice Act (J. & A. 1f 8555), the plaintiff failed to state a cause of action, and that therefore the denial of the defendant\u2019s motion to strike such statement of claim from the files was error.\n2, Statutes, \u00a7 234*\u2014how statute in derogation of common law construed. A statute which is in derogation of the common law must be striptly construed, and a strict compliance therewith is indispensable.\n3. Statutes, \u00a7 234 \u2014how statute requiring affidavit of ownership of assigned claim construed. In an action in the Municipal Court upon an account, where the plaintiff\u2019s statement of claim alleged that he was the assignee of such account for valuable consideration, and the affidavit in support of such statement of claim was made by the plaintiff\u2019s attorney, held that section 18 of the Practice Act (J. & A. If 8555), giving the assignee and bona fide holder of a chose in action the right to sue in his own name but requiring such holder to make allegations or affidavit of ownership, being in derogation of the common law, required strict construction.\nAppeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.\nReversed and remanded.\nOpinion filed April 10, 1917.\nBarer & Holder, for appellant; G. Raymond Collins, of counsel.\nHenry M. Goldsmith, for appellee.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number."
  },
  "file_name": "0267-01",
  "first_page_order": 295,
  "last_page_order": 298
}