{ "id": 5342783, "name": "Barrett B. Clark v. A. T. Ewing", "name_abbreviation": "Clark v. Ewing", "decision_date": "1877-09", "docket_number": "", "first_page": "344", "last_page": "348", "citations": [ { "type": "official", "cite": "87 Ill. 344" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "12 Ill. 302", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2579063 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ill/12/0304-01" ] }, { "cite": "16 Barb. 352", "category": "reporters:state", "reporter": "Barb.", "opinion_index": 1 }, { "cite": "1 Doug. 67", "category": "reporters:state", "reporter": "Doug.", "case_ids": [ 228885 ], "opinion_index": 1, "case_paths": [ "/doug/1/0067-01" ] } ], "analysis": { "cardinality": 330, "char_count": 6517, "ocr_confidence": 0.586, "pagerank": { "raw": 1.645743531443945e-07, "percentile": 0.6918337710036376 }, "sha256": "e6e3fd4e14cc8d28acacd6163dcac5e175c2ac74ac6867417e5aba8141493ec8", "simhash": "1:2b27e7255e17acd9", "word_count": 1223 }, "last_updated": "2023-07-14T20:49:46.129665+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Barrett B. Clark v. A. T. Ewing." ], "opinions": [ { "text": "Per Curiam :\nThese cases are alike, the same questions being presented in all the records.\nAppellant, in each case, insists that the judgment by default was entered before the time to plead, fixed by order of the court, had expired, and was, therefore, irregular. He also claims that, if the default was regular, the court ought to have set the same aside, upon the affidavits filed.\nThe time to plead was, by order of the court, extended \u201c to the third Monday of July,\u201d 1875. On that day, default, for want of plea, was entered, the damages assessed and final judgment rendered. Appellant insists that he had, by the terms of the rule, the whole of the third Monday of July in which to plead. This court can not. sanction that position, but hold that it was not irregular to take default at any time on that day for want of the .plea. The term \u201cto\u201d that day must be construed to mean until the meeting of the court upon that day.\nAs to the second point, we hold that due diligence to obviate the default is not shown by defendant, in .either of these cases.\nThe judgment in each of the cases must be affirmed.\nJudgments affirmed.", "type": "majority", "author": "Per Curiam :" }, { "text": "Mr. Justice Scott and Mr. Justice Dickey,\ndissenting:\nWe think these judgments ought to be reversed. Without discussing the merits of the cases, it is apparent to us that the defendant could not lawfully be defaulted for want of a plea at the time when these defaults were entered.\nThe statute provides that, \u201c on the appearance of the defendant, the court may allow such time to plead as may be deemed reasonable and necessary.\u201d In this case, \u201ctime to plead \u201d was allowed to defendant (as it is expressed in one, record) \u201ctill the third Monday of July, 1875,\u201d or, (as it is-expressed in the other records,) \u201cto the third Monday of July, 1875.\u201d The words, \u201ctill\u201d and \u201cto,\u201d in this connection, mean the same thing, and the order means that defendant may plead on or before that day. Under that order, the defendant was entitled to plead at any time during that day. He had, by the terms of that order, all of the third Monday of July within which to plead, and it was error to enter a default against him, for want of a plea, until after that day had passed.\nIn Dunn v. Hudson, 1 D. & L. 204, where a rule was entered on the 6th of June for \u201cplea in four days,\u201d it was held, that defendant had the whole of the 10th of June to plead, and that judgment entered on that day for want of a plea was irregular.\nIn Pepperill v. Burrell, 2 D. P. C. 674, it was held, that \u201c seven days\u2019 time for pleading\u201d gives the whole of the seventh day to plead in, after excluding the day on which the order is made.\nIn Oxley v. Bridges, 1 Doug. 67, it was held, that on a rule to plead \u201cby\u201d a particular day, that day is construed to continue till the office opens next morning.\nIn Thomas v. Douglass, 2 Johns. Cases, 226, an order was made enlarging the time to' plead \u201c until the second day \u201d of the term. Judgment by default, for want of a plea, was entered on the second day of the term. This was held irregular by the Supreme Court of New York, (Kent being, at that time, one of the judges,) and the judgment was set aside. The court said: \u201cThe defendant had time to plead until the second day of the term, and the order must be construed as including that day.\u201d\nSo it has been held, that, where the time for the making of an award by an arbitrator is enlarged until a given day, the time given includes the day named.\nIn Bruce v. Reed, 16 Barb. 352, the court say: \u201cIt has been decided that \u2018till\u2019 includes the day to which it is prefixed;\u201d and in support thereof, refers to Dakins v. Wagner, 3 Dowl. P. C. 535.\nIt is true, the words, \u201c until,\u201d \u201c till,\u201d and \u201c to,\u201d when applied to time, do not always include the day to which they are prefixed. In Webster v. French, 12 Ill. 302, under a statute providing that bids from all persons should be received \u201cuntil the 1st day of July, 1849, at which time all the bids received shall be opened and compared,\u201d etc., it was held, that the time for receiving bids terminated when that day began. The statute required the bids to be opened and compared on the 1st of July. That could not be done until after all bids had been received. In view of the language in other parts of the sentence, and in view of the \u201c objects of the statute and the nature of the transaction contemplated,\u201d the court very properly gave a construction to the word \u201c until,\u201d other than the ordinary import of the Avord. This court there said: \u201c The Avord \u2018 until \u2019 may * * * have an exclusive or an inclusive meaning, according to the subject to Avhich it is applied, the nature of the transaction to which it relates and the connection in which it is used.\u201d\nThe case at bar is not analogous to the case of Webster v. French, supra. It is one thing to say that certain things may continue to be done until a given day, and quite another to say that the time at which a given thing must be done is extended or postponed until a given day. Suppose the time of a public sale be extended or postponed until the 1st day of July, does that mean it must take place before the 1st of July?\nIn the case of that statute as to the time of receiving bids, the word \u201c before \u201d. might readily be substituted without marring the sense. To say, \u201cbids shall be received at anytime before the 1st of July, at which time all bids shall be opened,\u201d gives the same idea as if you say, \u201c bids may be received until the 1st of July, at which time all bids shall be opened.\u201d But to say, \u201cthe rule to plead herein is extended till (or to) any time before the third- Monday of July,\u201d does not convey the idea expressed by the words, \u201c the rule to plead herein is extended till (or to) the third Monday of July.\u201d If the words were, the rule, etc., \u201c is extended till the third Monday of July, on which day judgment will be entered, in the absence of a plea,\u201d the case would be analogous to the case of Webster v. French.", "type": "dissent", "author": "Mr. Justice Scott and Mr. Justice Dickey," } ], "attorneys": [ "Messrs. Barber & Logan, for the appellant.", "Messrs. Palmer & Colt, for the appellee. ." ], "corrections": "", "head_matter": "Barrett B. Clark v. A. T. Ewing.\nDefault\u2014rule to plead on a day, construed. Where time to plead is, by rule, extended to a specified day, a default for want of a plea may be taken on that day. The defendant does not have the whole of such day in which to plead. The words, \u201cto that day,\u201d mean until the meeting of the court on that day.\nAppeal from the Circuit Court of Will county; the Hon. Josiah McRoberts, Judge, presiding.\nMessrs. Barber & Logan, for the appellant.\nMessrs. Palmer & Colt, for the appellee. .\nTwo other cases, between the same parties, are considered in this opinion." }, "file_name": "0344-01", "first_page_order": 344, "last_page_order": 348 }