{
  "id": 4775201,
  "name": "John Alston v. Richard S. Brownell",
  "name_abbreviation": "Alston v. Brownell",
  "decision_date": "1879-05-02",
  "docket_number": "",
  "first_page": "17",
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      "cite": "4 Ill. App. 17"
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    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T20:50:02.060400+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "John Alston v. Richard S. Brownell."
    ],
    "opinions": [
      {
        "text": "Murphy, P. J.\nThis was an action of debt commenced in the Superior Court of Cook County by the appellee against the appellant, to charge him as a stockholder in the Bank of Chicago. To the declaration a special demurrer was filed by the appellant, which upon argument, the court overruled. The appellant thereupon asked leave to plead to the merits. The court refused to allow the plea to be filed unless the appellant would file an affidavit setting forth that he had a meritorious defense, which was excepted to by the appellant. Afterwards, and on the 17th day of January, 1879, the appellant presented to the court his plea nil debet, accompanied by the following affidavit: \u201c That to the best of affiant\u2019s knowledge and belief he never was stockholder, and never owned stock in the Hational Loan and Trust Company, of Chicago, or in the Bank of Chicago. That affiant verily believes he has a good defense to said suit upon the merits to the whole of the said plaintiff\u2019s demand,\u201d and asked leave to file the same in pursuance of the requirements of the Court. The court refused to allow the plea to be filed, upon the ground that the affidavit failed to comply with its requirement in that regard. This ruling of the Court was excepted to by the appellant, who brings the record here, and assigns for error the refusal of the Court to allow him to plead.\nWithout discussing the holding of this court in the case of the Empire Fire Insurance Co. of Chicago v. Heal Estate Trust Co., from which we see no reason for receding, we think in this' case that the appellant, in his endeavor to comply with the terms fixed by the court, succeeded substantially in doing so. If the facts stated in the affidavit are true, he had a perfect defense to the suit. \u201c That to the best of his knowledge and belief he never was a stockholder and never owned stock in the company\u201d \u2014 amounts to a positive statement, under oath, that he never subscribed for or purchased stock in the company himself, and that so far as he knows, no one ever did so for him-If this affidavit is to be taken as true, and for the purposes of this question it must be, then it states a fact specifically which constitutes a good defense to the action, and it was error for the court to refuse him leave to file his plea.\nFor which error the judgment of the court below is reversed and the cause remanded.\nReversed and remanded.",
        "type": "majority",
        "author": "Murphy, P. J."
      }
    ],
    "attorneys": [
      "Mr. Robert Hervey, for appellant;",
      "Messrs. Shufeldt & Westover, for appellees;"
    ],
    "corrections": "",
    "head_matter": "First District\nMarch Term, 1879.\nJohn Alston v. Richard S. Brownell.\nAffidavit of merits\u2014Sufficiency.\u2014An affidavit, \u201cthat to the best of affiant\u2019s knowledge and belief, he never was a stockholder, and never owned stock in the National Loan & Trust Company, etc., and that affiant believes he - has a good d.efense to said suit upon the merits to the whole of plaintiff\u2019s demand,\u201d is a sufficient affidavit of merits. The facts stated, if true, constitute a complete defense to the action.\nAppeal from the Superior Court of Cook county; the Hon. J osbph E. Cary, J udge, presiding.\nOpinion filed May 2, 1879.\nMr. Robert Hervey, for appellant;\nthat the court erred in requiring appellant, on overruling his demurrer, to file with his plea an affidavit setting forth his defense in detail, as a condition of his right to plead, cited Empire Fire Ins. Co. v. Real Estate Trust Co. 1 Bradwell, 391; McCormick v. Wells, 83 Ill. 239; Beardsley v. Gosling, 86 Ill. 58.\nThe judgment, being for $3,030 debt and one cent damages, is erroneous: Russell v. Chicago, 22 Ill. 283.\nMessrs. Shufeldt & Westover, for appellees;\nthat the right to plead after demurrer overruled, is in the discretion of the court, cited 1 Chitty\u2019s Pl. 669; 1 Burrill\u2019s Pr. 209.\nThe court may impose terms as a condition of leave to plead: Bates v. Williams, 43 Ill. 494; Herrington v. Stevens, 26 Ill. 298; Conradi v. Evans, 2 Scam. 185; Lansing v. Birge, 2 Scam. 875; Miller v. Heath, 7 Cow. 161.\nAnd may require an affidavit showing a meritorious defense: McCord v. Crooker, 83 Ill. 556.\nAppellant waived his right to object by attempting to comply with the order: Stuber v. Schack, 83 Ill. 191."
  },
  "file_name": "0017-01",
  "first_page_order": 13,
  "last_page_order": 15
}