192 Ill. App. 172 | Ill. App. Ct. | 1915
delivered the opinion of the court.
Although this appeal has been somewhat elaborately argued on both sides, the prefixed statement shows that the questions involved are few and simple.
The motion made by the appellee to dismiss the appeal is denied. We have before had occasion to consider the final character of a judgment like the one at bar, taken under section 55 of the Practice Act of 1907, in Madden v. Ferguson, 182 Ill. App. 210, and the conclusion then reached remains our opinion. A judgment on an affidavit of merits of the defendant for a portion of the amount claimed by the plaintiff is a final judgment. It is an absolute and unconditional order for the payment of money, on which final process may issue. It involves the merits of the case. It dis-joins the portion of the claim from which the judgment is rendered from the rest as finally as though separate suits had been brought. There is no doubt that such judgments, and, indeed, judgments much less final in essence, have been held “final” and appealable by our courts. For example, see Blake v. Blake, 80 Ill. 523, and Lester v. People, 150 Ill. 408.
We see no merit in the contention made to support plaintiff’s assigned cross-errors, that the Circuit Court erred in not rendering judgment at the plaintiff’s request on January 10, 1914. It was entirely within the discretion of the court to allow a second amended affidavit as it did. The answer of the appellant to the' appellee in this particular is irrefragable. The argument of appellee, as it is said, amounts at most to the position that the court might without error have denied leave to file another amended affidavit if the original affidavit and the first amended one were justifiably stricken. “Assuming this to be true, it has no tendency to show that it was error for the Court to exercise its discretion in favor of allowing the affidavit to be filed.”
The argument made by the appellee that the order of the Circuit Court of February 28, 1914, overruling the demurrer to the first three counts of the declaration is of any importance in this appeal, or can indeed be considered, is manifestly unsound. We can consider the matter only as it stood on February 7, 1914, when the appeal was perfected. The “Supplemental transcript of record” is useless to us.
The question before us therefore is whether the court was in error in entering on January 16, 1914, over the objection of the defendant, a judgment against it in favor of the plaintiff for $2,396.98, with interest on said sum from December 11, 1911.
The judgment was justified, if at all, only by the application of section 55 of the Practice Act to the affidavit of merits filed by the defendant on January 12, 1914.
Were there no other objection to the judgment, the addition of the interest from December 11,1911, would vitiate it. Even if the affidavit were to be considered an admission of any sum due to the plaintiff from the defendant, it could only be of $2,396.98 without interest. It says indeed that it was on or about December 11,1911, that the plaintiff elected “to withdraw in cash the accumulated surplus apportioned by the defendant to said policy,” but it says nothing about the time when the accumulated surplus was “apportioned.” Nor do we think that there is any presumption that the apportionment was made on the day the election was made or before. It was the apportionment and not the election which fixed the indebtedness.
But there was a more fundamental objection not only to the rendering of á judgment for the amount for which it was rendered, but for any amount, as the pleadings and record of the cause stood on January 16, 1914.
The declaration was in' four counts. To three of them a general and special demurrer was pending, presenting issues of law and rendering it improper and unjustifiable to take them into account in considering whether a judgment should be rendered under section 55 of the Practice Act.
To the fourth count a plea of the general issue was on file. The judgment, if justified at all, must be justified under these pleadings and the affidavit of merits of the defendant and section 55 of the Practice Act as applied to them. The Practice Act says:
“If the affidavit of defense is to only a portion of the ■plaintiff’s demand, the plaintiff shall be entitled to a judgment for the balance of his demand, and the suit shall thereafter proceed as to the portion of the plaintiff’s demand in dispute,” etc.
But the affidavit on which the judgment in this case was rendered begins first of all by stating that the affiant “verily believes that the defendant has a good defense to the whole of the plaintiff’s demand set out in the fourth count of the plaintiff’s declaration,” and it proceeds to say that no recovery ban be had under the fourth count on the claim of the defendant, because in effect the claim made in the affidavit of claim is not one that can come under the statements of the fourth count. That is what the position amounts to, that a claim on a policy of insurance of this kind cannot be introduced under the consolidated money counts.
The position is moreover rightly taken. Heffron v. Rochester German Ins. Co., 220 Ill. 514. But because the defendant, after saying in his affidavit that it is not indebted to the plaintiff under the fourth count, goes on in effect to say, as an alternative position, that even if said policy might be introduced in-evidence under the fourth count (which he has before denied that it could), it could not be held liable for more than $2,396.98, and gives its reasons therefor,-—-it is insisted by appellee that' the court could, with the plea of the general issue and this affidavit still on file, treat the affidavit of defense as one “to only a portion of the plaintiff’s demand,” and the amount of $2,396.98 as not “in dispute. ” We do not think this was a correct construction of the statute. It is tantamount, as counsel for appellant say, to construing it as doing away with all requirements, that a judgment must be responsive to the pleadings and issues in the case in which it is entered. We think that the clause above quoted was an amendment designed only to abolish the common-law rule that there could be but one final judgment in common-law action of assumpsit.
It never was meant to allow judgment on the consideration of affidavits by the court irrespective of the state of the pleadings, or to turn a denial of indebtedness under the pleadings into an “admission” or “confession” of judgment.
The judgment is reversed and the cause remanded to the Circuit Court.
Reversed and remanded.