| Ill. | Jan 15, 1864
delivered the opinion of the Court:
The only question we deem it necessary to notice arising on this record is, as to the propriety of the action of the court at the October Term, 1862, at which term the default of the defendant was entered, damages assessed, and final judgment entered.
The record shows that at the .October Term, 1859, the defendant below filed his petition and bond praying for the removal of the cause to the Circuit Court of the United States for the southern district of Illinois, on the ground that the plaintiff was a citizen of this State, and the defendant a citizen of the State of Massachusetts, in pursuance of the judiciary act of 1789. This application has never been disposed of by the Coles Circuit Court. It is still pending, and while so pending, taking a default was irregular, and the motion to set it aside should have been allowed. It appears from the record that the plaintiff himself was under the belief that the petition had been granted and the cause removed to the United States court; for, in December following, he caused a notice to be served on the defendant’s attorney that he would take the depositions of certain witnesses to be read in evidence in this suit, “now pending and undetermined in the Circuit Court of the United States for the southern district of Illinois, to which court said case has been removed from the Coles County Circuit Court.” To the same effect is his affidavit made on the 5th of December, 1859, that the cause had been changed from the Coles Circuit Court to the Circuit Court of the United States for the southern district of Illinois.
It would be unjust, under the circumstances, to permit the plaintiff to take a default: first, because this motion of defendant for the removal of his cause had not been finally acted on by the Circuit Court; and, second, because the plaintiff had acted in the case as if he deemed the cause pending in the Circuit Court of the United States. It was removed from the docket of the Coles Circuit Court, from May Term, 1860, to May Term, 1862, when it was again placed on the docket with out any notice to the defendant. If a continuance has been granted in a cause, and afterwards set aside, it is irregular to take a default without notice to the other party. McKee v. Ludwig et al., 30 Ill. 28" date_filed="1862-01-15" court="Ill." case_name="McKee v. Ludwig">30 Ill. 28. And this is a stronger case.
We have no hesitation in saying the default so taken was irregular and should have been set aside. The judgment is reversed and the cause remanded.
Judgment reversed.