198 Ill. 211 | Ill. | 1902
In deciding this case the Appellate Court delivered the following opinion:
“Rule 15 does not declare that contested motions shall not be heard on any day save Saturday, or that no contested motion will be heard unless placed upon a calendar of contested motions by the clerk, for which three days’ notice has been given. Without regard, however, to this, and without expressing an opinion as to whether a contested motion can be heard upon any day save Saturday, it is well settled that the court, when exercising its discretion to set aside a default and allow a party to plead, may impose terms. In the present case the court did impose reasonable terms as a condition of setting aside the default, namely, that the city should file its pleadings at once, so that the case might be tried upon the following Tuesday. The city did not except to the action of the court in this regard, but, acting under it, filed a general demurrer. Thereupon the plaintiff gave notice that it would call up the demurrer for argument and disposition upon the following Monday. Upon that day appellant appeared and objected to the demurrer then being heard. The court endeavored to explain the circumstances and conditions under which the default had been set aside, to which the defendant replied that there could be no conditions and declined to argue the demurrer, insisting it had a right to have the same placed on the contested motion calendar, whereupon the court overruled the demurrer and set the cause down for trial on the 18th day of June. To this setting' of the cause for trial appellant did not except, but replied, T ask for a jury on the trial of this case,’ to which the court replied, ‘That is your right and privilege. ’ One week thereafter, namely, on the 18th day of June, the case was called for trial. The defendant did not appear, whereupon such proceedings were had that the judgment appealed from was entered in favor of appellee. The court, in overruling the demurrer and setting the cause for trial, acted entirely within its powers.
“Appellant urges that the evidence did not warrant a verdict, appellee, among other things, having testified that the city of Chicago owed him for rent of the premises described in the lease, $2583.33., This statement, appellant urges, was inadmissible and is an usurpation of the functions of the jury. This may be, but appellant neither objected to the giving of such evidence nor excepted to its admission. A party failing to object and except in apt time cannot for the first time in the Appellate Court insist that there was error in the admission of evidence. Wrigley v. Cornelius, 162 Ill. 92; St. Louis, Alton and Terre Haute Railroad Co. v. Eggmann, 161 id. 155; Kankakee and Illinois River Railroad Co. v. Chester, 62 id. 235; Mitchell v. King, 187 id. 452.
“The testimony, however, was unnecessary. The lease having been introduced in evidence, examination of it showed that upon its face, up to the time of the bringing of the suit, a much larger sum than that testified to by appellee was due thereon, and a verdict might have been rendered and judgment entered upon the lease alone, with proof of its execution. The defendant being in default, every material and traversable fact alleged in the declaration was admitted by the default, and all that was required of the court was to make an assessment of damages. Massachusetts Mutual Life Ins. Co. v. Kellogg, 82 Ill. 614; Simmons v. Jenkins, 76 id. 479; Dana v. Bryant, 1 Gilm. 104; Miller v. Kingsbury, 128 Ill. 45; Cerveny v. Chicago Daily News, 139 id. 345.
“It was not necessary that the evidence should show for what years the rent testified to accrued. The evidence showed that there was due up to a certain time the amount for which a verdict was rendered. Under the declaration and default it was not necessary that the evidence should show that an appropriation had been made for the payment of such rent for any portion of the period.covered by the lease.
“There being no error in the record warranting a reversal of the judgment below, it is affirmed.”
We concur in the foregoing views expressed by the Appellate Court, and in the conclusion announced by that court. Accordingly, the judgment of the Appellate Court is affirmed.
Judgment affirmed.