An objection that replications were not filed to the defendant's
pleas when the trial commenced, nor before judgment, with leave of
court, comes too late if made after entry of judgment.
When a defendant is compelled to proceed with a trial in
Illinois in a case in which the issues are not made up by the
filing of replications to the pleas, and makes no objection on that
ground, the failure to do so is equivalent to consenting that the
trial may proceed.
In Illinois, the filing by the plaintiff under the statute of
that state (2 Starr & Curtis' Stats. 1801) of an affidavit
"showing the nature of his demand and the amount due him from the
defendant" does not prevent the recovery of a larger sum if a
larger sum is claimed by the pleadings and shown to be due by the
evidence.
The case was stated by the Court as follows:
Benjamin F. Thompson and Homer Root brought this action of
assumpsit against the J. S. Keator Lumber Company for a balance
alleged to be due them for cutting and hauling saw logs, etc. The
two main grounds of dispute were (1) whether the price for the work
was limited by the contract in question to three dollars per
thousand feet of saw logs cut and delivered into the boom limits of
the Black River, Wisconsin, without extra charge, or whether the
plaintiffs, in addition to the above price, were entitled to be
paid for the driving or delivery of the logs into said boom limits;
(2) whether the plaintiffs had
Page 144 U. S. 435
not overcharged the defendant in the scaling and measurement of
the logs.
With the declaration was filed an affidavit by plaintiffs under
the statute of Illinois providing that
"If the plaintiff in any suit upon a contract, expressed or
implied, for the payment of money, shall file with his declaration
an affidavit showing the nature of his demand and the amount due
him from the defendant, after allowing to the defendant all his
just credits, deductions, and set-offs, if any, he shall be
entitled to judgment as in case of default, unless the defendant,
or his agent or attorney if the defendant is a resident of the
county in which the suit is brought, shall file with his plea an
affidavit stating that he verily believes he has a good defense to
said suit upon the merits to the whole or a portion of the
plaintiff's demand, and, if a portion, specifying the amount,
(according to the best of his knowledge and belief),"
etc. 2 Starr & Curtis' Stat.Ill., p. 1801, � 37,
§ 36.
The defendant filed a plea in abatement, and subsequently pleas
of non-assumpsit and set-off, the latter being for an amount
exceeding that sued for by the plaintiff. With these pleas, the
defendant filed an affidavit of merits in conformity with the above
statute.
The parties by written stipulation waived a jury and agreed that
the case be set for trial any day not earlier than March 28, 1888.
Under this stipulation, the plaintiffs had it set for trial on the
day just named. The defendant on that day requested a postponement
of the trial until the arrival of its Wisconsin counsel, who had
had sole charge of the preparation of the defense, and also because
of the absence of its principal witness. The court ruled that
unless the defendant showed legal grounds for a continuance, the
trial should proceed forthwith. The defendant then entered a motion
for continuance based upon affidavit as to what the absent witness
would state. The plaintiffs offering to admit upon the trial that
the witness, if present, would testify as set forth in the
affidavit, the court overruled the motion for continuance and held
that the trial must proceed forthwith. To this action of the court
the defendant excepted. Thereupon the trial was commenced
Page 144 U. S. 436
on the 28th of March, 1888, in the absence of the defendant's
Wisconsin counsel, who, however, arrived before the conclusion of
the trial, which continued during the 29th and 30th of March. On
the last-named day, but before the trial was concluded, the
plaintiffs, without notice to the defendant or its attorney and
without obtaining leave from the court, filed with the clerk
replications to the defendant's pleas.
On March 31, 1888, the court made a general finding of the
issues for the plaintiffs and assessed their damages at $15,568.99,
for which amount judgment was entered against the defendant. To
this judgment the defendant excepted on the ground that it was
excessive in amount.
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The principal assignments of error have nothing of substance in
them. When the plaintiffs agreed to admit upon the trial that the
defendant's absent witness would testify as stated in the affidavit
filed for a continuance of the case, and the court thereupon ruled
that the trial should proceed, attention was not called to the fact
that replications had not been filed to the first and third pleas,
and judgment was not asked upon those pleas for want of such
replications. Nor did the defendant, before judgment, move for a
new trial upon the ground that its first and third pleas were
unanswered at the time the trial began. The filing of replications
to those pleas during the progress of the trial and without leave
of the court was, of course, improper and irregular. But it must be
presumed that the fact of their having been so filed was known to
the defendant before the trial was concluded or before the judgment
was entered. Besides, the judgment was under the control of the
court during the term, and if it had been made to
Page 144 U. S. 437
appear that the defendant was unaware, prior to the entry of
judgment, that replications to its first and third pleas were put
on file during the progress of the trial, it may be that the court
would have set aside the judgment. It appears only that the
replications were not on file when the trial commenced, not that
their being filed during its progress was unknown to the defendant
before the trial was concluded. The defendant was bound to know,
when the court ordered the parties to proceed with the trial, that
replications had not been filed to its first and third pleas. It
should then have asked for a rule upon the plaintiff to file
replications. Its failure to do so was equivalent to consenting
that the trial, so far as the pleadings were concerned, might be
commenced. The objection that replications were not filed when the
trial commenced nor before judgment, with leave of the court, came
too late after judgment was entered. In
Kelsey v. Lamb, 21
Ill. 559, the Supreme Court of Illinois said:
"If the defendant has filed his plea, and the other party fails
to reply within the time required by the rules of the court, he has
a right to judgment by default against the plaintiff, but until he
obtains such default, the pleas cannot be considered as confessed
by the plaintiff. It is the default which gives the right to
consider and act upon the pleas as true. In this case, no default
was taken. When the parties submitted the case to trial by the
court, without a jury, by consent, it had the effect of submitting
the case to trial on the pleadings, as if there were proper issues
formed, and the court will hear evidence under all the pleas
presenting a legal defense, precisely as if the allegations of such
pleas had been formally traversed. This is the fair and reasonable
construction to be given to such agreements. But it is otherwise
where the party is compelled to proceed to trial without the
issues' being formed in the case. Then the act is not voluntary,
and no such intendment can be made."
The defendant here was compelled to proceed with the trial, but
no objection was made by it to a trial because the issues were not
fully made up.
See also Bunker v. Green, 48 Ill. 243;
Beesley v. Hamilton, 50 Ill. 88;
Barnett v.
Graff, 52 Ill. 170.
Page 144 U. S. 438
It is objected that the damages a warded to the plaintiffs are
excessive in that their affidavit, filed with the declaration,
shows the amount claimed as of August 16th, 1887, when the action
was commenced, was only $13,943.23, whereas the judgment was for
$15,568.99. Allowing interest upon the first-named sum up to the
date of the judgment, the damages given exceed the amount claimed
in the plaintiffs' affidavit by more than $1,000. But the
ad
damnum was $20,000, and the bill of exceptions states that
"the plaintiffs also introduced evidence tending to show that
the amount now [then] due and owing from the defendant to the
plaintiffs for the matters and causes of action aforesaid is
$15,568.99."
It does not state what this evidence was, nor does it appear
that the defendant objected to evidence showing an indebtedness on
its part in excess of the sum claimed in the plaintiffs' affidavit.
Besides, the affidavit, though no part of the declaration itself,
was a statutory pleading, which might have been amended upon such a
suggestion.
Healy v. Charnley, 79 Ill. 592;
McKenzie
v. Penfield, 87 Ill. 38. The only purpose of the affidavit is
to entitle a plaintiff to judgment as in case of default unless
defendant shall file an affidavit of merits with his pleas, and in
case of such default, the plaintiff's affidavit may be taken as
prima facie evidence of the amount due, but even this is
discretionary with the court.
Kern v. Strasberger, 71 Ill.
303. No point was directly made in the court below, either before
or after judgment, that the plaintiffs were limited in their
recovery to the sum named in their affidavit. An objection of that
character, made for the first time in this Court, ought not to be
entertained.
No other questions presented by the record are of sufficient
importance to be considered.
Judgment affirmed.
