192 Ill. App. 395 | Ill. App. Ct. | 1915
delivered the opinion of the court.
The plaintiff corporation, P. Rielly & Son, brought an action in the Municipal Court against the defendant for merchandise sold and delivered and filed a statement of claim. Afterwards, by order of the court, it filed a more specific statement of claim. The contention that the court erred in denying plaintiff’s motion for a default for the reason that defendant did not appear and file an affidavit of defense within the time fixed for its appearance is without merit. Whether a default and judgment shall be set aside is a matter resting in the discretion of the court, and the' exercise of this discretion will not be interfered with on appeal except in cases where it clearly appears that there has been an abuse of such discretion. This being the rule when default has been entered, it should apply with all its force to a ruling on a motion for default.
The defendant filed interrogatories which were answered by the plaintiff. The defendant then moved that the suit be dismissed, basing its motion on plaintiff’s amended statement of claim, the affidavit of defense and plaintiff’s answer to the interrogatories. The court granted the motion and dismissed the action.
The purpose of permitting interrogatories is to obtain a discovery of facts resting in the knowledge of a party to a suit. An interrogatory and answer thereto is not a pleading. The answer may be used as evidence on the trial or in support of an application for a directed verdict for the defendant, but cannot be used in support of a motion to dismiss the suit. The admission of facts contained in the answer to the interrogatories cannot be construed as a waiver of trial by jury. The motion to dismiss could not devolve on the court the determination summarily of a question of fact. On this motion the court ought not to have determined the question of fact whether the plaintiff corporation was doing business in Illinois in violation of the statute, but ought to have remitted the parties for trial to a jury.
The judgment of the Municipal Court is reversed and the cause remanded.
Reversed and remanded.
