ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.
MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.
The principal assignments of error have nothing of substance in them. When the plaintiffs agreed to admit upon the trial that the defendant's absent witness would testify as stated in the affidavit filed for a continuance of the case, and the court thereupon ruled that the trial should proceed, attention was not called to the fact that replications had not been filed to the first and third pleas, and judgment was not asked upon those pleas for want of such replications. Nor did the defendant, before judgment, move for a new trial upon the ground that its first and third pleas were unanswered at the time the trial began. The filing of replications to those pleas, during the progress of the trial, and without leave of the court, was, of course, improper and irregular. But it must be presumed that the fact of their having been so filed was known to the defendant before the trial was concluded, or before the judgment was entered. Besides, the judgment was under the control of the court during the term; and if it had been made to
appear that the defendant was unaware, prior to the entry of judgment, that replications to its first and third pleas were put on file during the progress of the trial, it may be that the court would have set aside the judgment. It appears only that the replications were not on file when the trial commenced, not that their being filed during its progress was unknown to the defendant before the trial was concluded. The defendant was bound to know, when the court ordered the parties to proceed with the trial, that replications had not been filed to its first and third pleas. It should then have asked for a rule upon the plaintiff to file replications. Its failure to do so was equivalent to consenting that the trial so far as the pleadings were concerned, might be commenced. The objection that replications were not filed when the trial commenced, nor before judgment, with leave of the court, came too late after judgment was entered. In Kelsey v. Lamb, 21 Illinois, 559, the Supreme Court of Illinois said: "If the defendant has filed his plea, and the other party fails to reply within the time required by the rules of the court, he has a right to judgment by default against the plaintiff, but until he obtains such default, the pleas cannot be considered as confessed by the plaintiff. It is the default which gives the right to consider the act upon the pleas as true. In this case no such default was taken. When the parties submitted the case to trial by the court, without a jury by consent, it had the effect of submitting the case to trial on the pleadings, as if there were proper issues formed, and the court will hear evidence under all the pleas presenting a legal defence, precisely as if the allegations of such pleas had been formally traversed. This is the fair and reasonable construction to be given to such agreements. But it is otherwise, where the party is compelled to proceed to trial, without the issues being formed in the case. There the act is not voluntary, and no such intendment can be made." The defendant here was compelled to proceed with the trial, but no objection was made by it to a trial because the issues were not fully made up. See also Bunker v. Green, 48 Illinois, 243; Beesley v. Hamilton, 50 Illinois, 88; Barnett v. Graff, 52 Illinois, 170.
It is objected that the damages awarded to the plaintiffs are excessive in that their affidavit, filed with the declaration, shows the amount claimed, as of August 16, 1887, when the action was commenced, was only $13,943.23, whereas the judgment was for $15,568.99.Allowing interest upon the first-named sum up to the date of the judgment, the damages given exceed the amount claimed in the plaintiffs' affidavit by more than one thousand dollars. But the ad damnum was twenty thousand dollars, and the bill of exceptions states that "the plaintiffs also introduced evidence tending to show that the amount now [then] due and owing from the defendant to the plaintiffs for the matters and causes of action aforesaid is $15,568.99." It does not state what this evidence was, nor does it appear that the defendant objected to evidence showing an indebtedness on its part in excess of the sum claimed in the plaintiffs' affidavit. Besides, the affidavit, though no part of the declaration itself, was a statutory pleading, which might have been amended upon such a suggestion. Healey v. Charnley, 79 Illinois, 592; McKenzie v. Penfield, 87 Illinois, 38. The only purpose of the affidavit is to entitle a plaintiff to judgment as in case of default unless defendant shall file an affidavit of merits with his pleas, and in case of such default the plaintiff's affidavit may be taken as prima facie evidence of the amount due; but even this is discretionary with the court. Kern v. Strasberger, 71 Illinois, 303. No point was directly made in the court below, either before or after judgment, that the plaintiffs were limited in their recovery to the sum named in their affidavit. An objection of that character, made for the first time in this court, ought not to be entertained.
No other questions presented by the record are of sufficient importance to be considered.
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