Haggard Bros. v. W. & T. Smith.
Practice—affidamit with declaration so as to require affidavit of merits to pleas. The affidavit required under section 36 of the Practice act of 1872 to be filed with the declaration, to entitle the plaintiffs to judgment by default unless the defendant will file an affidavit that he has a defense, etc., with his pleas, may properly be made by one of several plaintiffs, and will be sufficient if, in connection with the declaration, it shows the nature of the cause of action.
*508Appeal from the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge; presiding.
This was an action of assumpsit, by William and Thomas Smith, partners, against David D. Haggard and John W. Haggard, partners under the firm name of Haggard Bros., and James Grover, upon a promissory note. Grover was not served with process. William Smith,'one of the plaintiffs, made the following affidavit, which was filed with plaintiffs’ declaration:
“William Smith, being sworn according to law, on oath says, that he is one of the plaintiffs in the above entitled cause now pending and undetermined in the circuit court within and for the county of McLean, and State of Illinois; that said defendants in said cause are justly indebted to the plaintiffs, on and by virtue of the promissory note sued on in said cause, to the amount of $696.50; that said amount was, before the commencement of said suit, and is, due to plaintiffs on said note from the defendants after allowing to the '• defendants all their just credits, deductions and set-offs.
William Smith.”
The defendants, Haggard Bros., moved to strike this affidavit from the files, because it did not show the nature of the plaintiffs’ demand, and because it was an affidavit of only one of the plaintiffs. The court overruled the motion and defendants excepted. Haggard Bros, then filed the plea of the general issue, which the court struck from the files on plaintiffs’ motion, and defendants excepted. The court then rendered judgment by nil dieit, and assessed plaintiff’s damages at $717.75, and rendered final judgment for that sum and costs, from which judgment Haggard Bros, appealed.
Mr. W. M. Hatch, for the appellants.
Messrs. Weldon & Benjamin, for the appellees.
*509Mr. Justice McAllister
delivered the opinion of the Court:
This was assumpsit, brought in January, 1873, upon a promissory note. One of the plaintiffs made .an affidavit under the 36th section of the Practice act of 1872, which was filed with the declaration. The defendant served failing to file any affidavit of merits, judgment by default was entered and the damages assessed by the court.
The points made are frivolous. The affidavit was properly made by one plaintiff, and is sufficiently definite, when taken in connection with the declaration. Neither party requiring a jury, the damages were properly assessed by the court under section 40, Laws 1871-2, p. 344.
The judgment of the court below is affirmed.
Judgment affirmed.