| Ill. | Mar 29, 1882
delivered the opinion of the Court:
We find in this record no sufficient cause to disturb the judgment. It is strenuously insisted that the circuit court erred in refusing to set aside the default entered for want of a replication to defendant’s plea of set-off. We think the affidavit in support of the motion fails to show due diligence. The action was originally that of appellant. It must be taken that it was known to plaintiff’s attorney that the declaration had been filed. He supposed the case was to be tried on the 22d of June. It was his duty to have the issues made up before that time. The case had long been pending. When he failed to find the papers, as he states, upon search at the commencement of that term (on May 16th), and on the divers occasions, .“every day or two, ” on which he searched, up to the 17th of June, when he made his last search, it is plain that due diligence required him to make application to the clerk for the papers. While the clerk may have a general plan for keeping the papers pertaining to causes in court, known to the bar, it often occurs, and is always liable to occur, that papers which are not lost or mislaid are elsewhere than the usual place, and are still in the custody of the clerk, ready to be produced when needed. The failure to find the papers, when no application was made to the clerk to produce them, is no excuse whatever for the failure to traverse or reply to the plea.
It is contended, also, that it was error to call a jury to try the issue in the cause, when no issue had been joined. If this be error at all, it is error in a mere matter of form, by which appellant could not, in any event, be injured. The plea of non-assumpsit,—tendering an issue,—remained unanswered by plaintiff, no formal joinder of the issue having been filed by plaintiff. The plea of set-off, alleging an indebtedness by plaintiff in an amount greater than the demand of plaintiff, was on file, and not answered. The cause, in this condition, was called in its regular order for trial. By section 31 of our Practice act, (Rev. Stat. 1874, p. 778,) it is enacted, that when a plea of set-off “shall have been interposed, the plaintiff shall not be permitted to dismiss his suit without the consent of the defendant, or leave of court. ” This implies that leave of court is not to be given to dismiss, under such circumstances, except for cause shown. When this ease was called the plaintiff did not appear,—did not ask leave to dismiss. Judgment by default might, no doubt, have been entered in bar of plaintiff’s action, for want of joinder in the issue tendered by the plea of non-assumpsit, and a jury might have been called merely to assess full damages to defendant under his plea of set-off, on which judgment by default had been entered. This, perhaps, would have been a more artistic mode of reaching the result. Appellant can not complain that a course more favorable to him was in fact pursued. The issue tendered by the plea of nonassumpsit was treated as joined, and it was submitted to a jury. At the worst, the jury could in that regard say no more against the plaintiff than the court ought to have adjudged without the jury,—that is, that plaintiff had no cause of action, as alleged in the declaration. In fact, it kept the door open to give to plaintiff, under that issue, the benefit of any testimony which might be brought out in plaintiff’s favor in the assessment of damages under the plea of set-off. It is obvious plaintiff could in no event be injured by this departure from the strict mode of procedure, but might be benéfited. The plaintiff, for some reason, has chosen to embody in the bill of exceptions all the evidence given to the jury. Looking into that, it is seen that this departure from the more artistic mode did redound to the benefit of plaintiff, for it there appears that the damages for defendant assessed in the verdict, are not the whole amount of defendant’s demand proved, but merely the excess of that demand over plaintiff’s demand.
We find no ground calling for a reversal of this judgment.
Judgment affirmed.