{
  "id": 5447441,
  "name": "F. N. Matthews & Company, Appellant, v. Morris Lilienthal et al., Appellees",
  "name_abbreviation": "F. N. Matthews & Co. v. Lilienthal",
  "decision_date": "1919-10-27",
  "docket_number": "Gen. No. 24,642",
  "first_page": "160",
  "last_page": "163",
  "citations": [
    {
      "type": "official",
      "cite": "215 Ill. App. 160"
    }
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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    {
      "cite": "181 Ill. App. 364",
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    {
      "cite": "192 Ill. App. 172",
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      "reporter": "Ill. App.",
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      "case_paths": [
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    {
      "cite": "208 Ill. App. 302",
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        2920910
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  "last_updated": "2023-07-14T17:59:29.997324+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "F. N. Matthews & Company, Appellant, v. Morris Lilienthal et al., Appellees."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Deveb\ndelivered the opinion of the court-.\nThis is an appeal by plaintiff from a judgment of the Municipal Court of Chicago.\nA former judgment in the case was reversed and the cause remanded by this court. 208 Ill. App. 302. The case was redocketed in the Municipal Court and a judgment was entered in that court in favor of defendants on a counterclaim. The suit was originally begun by plaintiff to recover damages for the breach of a contract. The affidavit in support of plaintiff\u2019s claim set up a written contract between plaintiff and the defendants, and it was sought thereby to show that after allowing the defendants all just and legal claims the defendants were indebted to plaintiff. The trial court on motion of defendants entered a judgment on defendants\u2019 counterclaim for the sum of $1,375.96, and it was ordered that the cause should proceed to trial as to a balance of the counterclaim in dispute.\nAn examination of the record discloses that plaintiff did not admit that it was indebted to the defendants in any sum whatsoever. The trial court held that the plaintiff\u2019s affidavit of merits was an insufficient defense to a part of the counterclaim. Whether the court was right in thus holding need not be determined upon this appeal, as it is our opinion that the court erred in entering a judgment on motion of defendants for a part of defendants\u2019 counterclaim and setting the cause down for trial as to that portion of the claim which under the pleadings presented a triable issue.\nThe trial court held that under the rules of the Municipal Court and the statutes of Illinois, the plaintiff by its amended affidavit of merits had admitted that it had no defense to a portion of defendants \u2019 counterclaim. While it may or may not be .true that the affidavit does not set forth a sufficient defense to a part of the counterclaim, it does not admit the validity of any part of the claim within the purview of section 55 of the Illinois Practice Act (J. & A. 8592), which is as follows:\n\u201cIf the affidavit of defense is to only a portion of the plaintiff\u2019s demand, the plaintiff shall be entitled to a judgment for the balance of his demand, and the suit shall thereafter proceed as to the portion of the plaintiff\u2019s demand in dispute,\u201d etc.\nThe plaintiff\u2019s amended affidavit of merits set forth that \u201caffiant verily believes said plaintiff has a good and meritorious defense to the whole of defendants\u2019 counterclaim; that the nature of said defense is as follows,\u201d etc.\nIt was held in the case of Cahn v. Northwestern Mut. Life Ins. Co., 192 Ill. App. 172, that under section 55 of the Practice Act (J. & A. \u00b6 8592) a valid judgment could be entered as to a portion of a claim where the defendant\u2019s affidavit of merits shows unequivocally or by admission that the defendant was indebted to the plaintiff for such part of the claim. In its opinion the court said:\n\u201cBut the affidavit on which the judgment in this case was rendered begins first of all by stating that the affiant \u2018verily believes that the defendant has a good defense to the whole of the plaintiff\u2019s demand set out in the fourth count of the plaintiff\u2019s declaration,\u2019 and it proceeds to say that no recovery can be had under the fourth count on the claim of the defendant, because in effect the claim made in the affidavit of claim is not one that can come under the statements of the fourth count.\n\u201cIt never was meant to allow judgment on the consideration of affidavits by the court irrespective of the state of the pleadings, or to turn a denial of indebtedness under the pleadings into an \u2018admission\u2019 or \u2018confession\u2019 of judgment.\u201d\nSection 55 of the Practice Act (J. & A. 8592) was enacted for the purpose of avoiding a technical difficulty frequently resulting from an adherence to the common-law rule against interlocutory judgments. Under this section of the statute the courts are authorized to enter judgment for part of a claim only in cases where it appears that no defense at all is made to a part of plaintiff\u2019s demand, or where a portion of such demand is admitted.\nIn the present case there is no admission on the part of the plaintiff that any part of the counterclaim of the defendants is justly due. In its affidavit,of merits the plaintiff states that it is not indebted to the defendants in any sum whatsoever because of damages suffered by the plaintiff \u201cby reason of a breach by the defendants of a written contract,\u201d etc., and the affidavit attempts to show wherein the alleged breach of the contract resulted in furnishing the plaintiff with sufficient defense to the whole of the counterclaim.\nIn the case of McKey v. Provus, 181 Ill. App. 364, it was held that where it appeared from the pleadings that the defendant admitted indebtedness as to certain items of a plaintiff\u2019s demand a valid judgment could be entered as to the sum of such items. But we have been unable to find any authority which holds that under section 55 of the Practice Act (J. & A. if 8592), or under similar statutes, an interlocutory judgment may be entered for a part of an entire claim merely because a pleading which is relied upon as a defense to the whole of a demand is held to be as to a part thereof insufficient. This is not, in our view, quite the same thing as an admission of indebtedness as to such part.\nThe judgment of the Municipal Court will, be reversed and the cause remanded with directions to enter an order or orders in the cause not inconsistent with the views herein expressed.\nReversed and remanded with directions.",
        "type": "majority",
        "author": "Mr. Justice Deveb"
      }
    ],
    "attorneys": [
      "Herman Frank, for appellant.",
      "Cermak & McClellan, for appellees. ,"
    ],
    "corrections": "",
    "head_matter": "F. N. Matthews & Company, Appellant, v. Morris Lilienthal et al., Appellees.\nGen. No. 24,642.\n1. Set-off and becotjpment\u2014judgment on affidavit of merits to counterclaim. Section 55 of the Practice Act (J. & A. If 8592), providing that if the affidavit of defense is to only a portion of plaintiff\u2019s demand, judgment may he entered for the balance, and the suit shall thereafter proceed as to the portion in dispute, did not authorize the court to enter judgment on defendants\u2019 counterclaim for a part of defendants\u2019 demand and to order that the cause proceed to trial as to the balance in dispute, where plaintiff\u2019s affidavit of merits, although not setting forth a sufficient defense to a part of such counterclaim, did not admit the validity of any part of the claim within the purview of said section.\n2. Set-off and becotjpment\u2014judgment on affidavit of merits to counterclaim. An affidavit of merits to a counterclaim which set forth that \u201caffiant verily believes said plaintiff has a good and meritorious defense to the whole of defendants\u2019 counterclaim; that the nature of said defense is as follows,\u201d etc., did not warrant a judgment in fcyor of defendants under section 55 of the Practice Act (J. & A. 8592), although it failed to set forth a sufficient defense as to part of the claim.\nAppeal from the Municipal Court of Chicago; the Hon. Habby M. Fisheb, Judge, presiding. Heard in this court at the October term, 1918.\nReversed and remanded with directions.\nOpinion filed October 27, 1919.\nHerman Frank, for appellant.\nCermak & McClellan, for appellees. ,"
  },
  "file_name": "0160-01",
  "first_page_order": 186,
  "last_page_order": 189
}