9 Ill. App. 412 | Ill. App. Ct. | 1881
We think the circuit court properly refused to set aside the default upon the affidavit filed by appellant. The affidavit does not show that appellant at any time called on the clerk of the court for the papers, or that he was in any way whatever misled by the defendant. The affidavit wholly fails to show such a state of facts as would require the court in the exercise of a reasonable discretion, to set aside the default and judgment. Appellee filed a plea of set-off. .This plea is in the nature of a cross-action, and after being filed the plaintiff could not dismiss its action of its own accord. It could only do so by the consent of the defense, or it was a matter resting in the discretion of the court. Sec. 31, Ch. 110, Underwood Statute. The defendant, if he saw proper so to do, might have added a similiter to the plea. Gillespie v. Smith et al. 29 Ill. 473. The rule announced in Seavey v. Rogers, 69 Ill. 534, requiring that the defendant, after filing a plea of set-off, should take a rule upon the plaintiff to answer, etc., does not apply in this case because the statute is now quite different from what it was when the judgment in the circuit court in that case was entered, and because if the rule of that case was applied to the one now before us, it would allow the plaintiff to do precisely what it is prohibited from doing by said section 31. We see no error in the record in this cause, and the judgment of the circuit court is affirmed.
Judgment affirmed.
