{
  "id": 5182054,
  "name": "Frank W. Caldwell v. R. M. McCay",
  "name_abbreviation": "Caldwell v. McCay",
  "decision_date": "1896-05-29",
  "docket_number": "",
  "first_page": "405",
  "last_page": "407",
  "citations": [
    {
      "type": "official",
      "cite": "65 Ill. App. 405"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "102 Ill. 453",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2810564
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
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      ]
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    {
      "cite": "8 Ill. 600",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2462833
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/8/0600-01"
      ]
    }
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  "last_updated": "2023-07-14T17:04:10.605056+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Frank W. Caldwell v. R. M. McCay."
    ],
    "opinions": [
      {
        "text": "Ib.. Justice Boggs\ndelivered the opinion of the Court.\nThe failure of the appellant to take issue upon the plea and to appear had no other effect than to authorize the court to dismiss the cause.\nIt was error to allow the appellee to waive a jury and confess a judgment in favor of appellant. Williams v. Brunton, 8 Ill. 600; Thompson on Trials, Vol. 2, Sec. 2229.\nThe judgment so entered is an adjudication of appellant\u2019s demand and concludes him unless reversed. The. error is therefore not merely formal, but of reversible character.\nThe case of City of East St. Louis v. Thomas, 102 Ill. 453, is cited as authority in support of the suggestion the error is merely formal.\nThe judgment affirmed in that case was rendered against the plaintiff, against whom default had been entered because of a failure to reply to a plea of set-off.\nSet-off is in the nature of a cross-action, and the same principles apply to its maintenance that would govern an independent action brought thereon.\nOur statute provides the plaintiff shall not be permitted to dismiss his suit without leave of the court or consent of the defendant in case a plea of set-off has been interposed.\nA plaintiff may therefore be defaulted if he fails to take issue upon a plea of set-off, and the court may proceed to final judgment against him, as was done in City of St. Louis v. Thomas, supra.\nBut in the case at bar there was no plea of set-off and the failure of the plaintiff to appear and plead amounted to a discontinuance of the action, and the court should have in such case dismissed the suit for want of prosecution.\n\u2022For the error indicated the judgment must be and is reversed and the cause remanded.",
        "type": "majority",
        "author": "Ib.. Justice Boggs"
      }
    ],
    "attorneys": [
      "\"W. C. Johns, attorney for plaintiff in error.",
      "Orea, Ewing & \"Walker, attorneys for defendant in error."
    ],
    "corrections": "",
    "head_matter": "Frank W. Caldwell v. R. M. McCay.\n1. Practice\u2014Where the Plaintiff Fails to Appear.\u2014In a case where there is no plea of set-off, the failure of the plaintiff to appear amounts to a discontinuance of the action, and nothing remains to he done by the court but to dismiss the suit for want of prosecution. To permit the defendant to waive a juiy and confess a judgment in favor of the plaintiff is reversible error.\nAssumpsit, on a promissory note. Error to the County Court of Macon County; the Hon. William L. Hammer, Judge, presiding. Heard in this court at the May term, 1896.\nReversed and remanded.\nOpinion filed May 29, 1896.\nStatement of the Case.\nJudgment in the sum of $654.13 in favor of the appellant and against the appellee was entered by confession under a warrant of attorney in the County Court of Macon County in vacation.\nAt the regular term next ensuing of said County Court a motion was entered and sustained to open the judgment and allow the appellee to plead and make defense to appellant\u2019s demand.\nPleas were filed and the cause was continued to the December term, 1895, of said court.\nAppellant did not reply to or traverse the pleas nor was issue formed under any of them for trial.\nThe appellant did not appear at said term of court nor did any one appear for him.\nThe appellee appeared in person and by counsel and the court permitted him to waive trial by jury and to confess a judgment in favor of appellant in the sum of $157.80.\nJudgment was entered accordingly in favor of appellant for that sum and for costs and he has appealed.\n\"W. C. Johns, attorney for plaintiff in error.\nOrea, Ewing & \"Walker, attorneys for defendant in error."
  },
  "file_name": "0405-01",
  "first_page_order": 401,
  "last_page_order": 403
}