delivered the opinion of the Court:
This was an action of assumpsit, brought in the Superior Court of the city of Chicago, by Curry against Reed, on a promissory note executed by Reed to Curry, for the payment of money.
It appears that a summons was issued against Reed, in the usual form, and served by the sheriff on the 25th of September, 1863. On the seventh of October following, there being.no appearance and no plea, a regular default was entered against the defendant, on the production to the court of the summons served upon him. On the eighth, final judgment was entered. On the ninth, the defendant, by his attorney, entered a motion to set aside the default, which the court refused, and an appeal taken. After these proceedings were had, the clerk of the court, of his own motion, marked the summons filed as of the seventh day of October, the day on which the default was taken.
The principal points relied on by appellant, to reverse the judgment, are: 1. Entering a judgment by default in a case where the summons was not marked “ filed.” 2. In refusing to set aside the judgment, for the reason that the suit had been brought without the authority of the plaintiff. 3. Because the court permitted a counter affidavit to be filed, on the motion to vacate the judgment. 4. The court permitted an affidavit to be read on behalf of the plaintiff, there being no excise stamp, to the jurat. There are some other minor points which the discussion of these will settle, not necessary to be stated particularly. As to the first point, the record shows when the default was taken, the defendant had not entered an appearance or employed any attorney to appear for him. Here, then, was an absence of diligence in defending the suit. It is conceded the summons was actually served on the defendant in ample time to employ counsel and prepare his defense, if he had one. The fact being incontestible that the summons was served, what additional potency, for the purposes of defense, would the file mark of the clerk give to it ? However negligent the clerk may have been, in the performance of his duty, such negligence could not detract from the efficacy of the writ, duly served. That was served. The writ commanded the defendant to be present in court on a certain day, to answer this demand, and the writ being shown to the court as a regular summons out of that court, duly served on the defendant, warranted the court in allowing the default. By showing the summons to the court, and placing it in the hands of the clerk, the plaintiff had performed every duty required of him in respect to it If the clerk lost it afterwards, the plaintiff should not lose his judgment thereby.
The cases cited by counsel for appellee are in principle analogous to this. Little v. Smith, 4 Scam. 400. There this court held, that a party having done all he was required to do to perfect his appeal from a justice of the peace, could not be made to suffer by the negligence of the magistrate in returning the papers to the Circuit Court. So in Merrick v. Wallace, 19 Ill. 486, we held that where a party, under the statute then in force, had deposited his deed for record,Tie had performed his duty, and was not to suffer by the laches of the recorder. If the clerk could not find this summons when it was required of him by the defendant, it may be accounted for from the peculiar organization of that court, the number of its clerks and depnties, and holding its sessions in different rooms of the court house. That the clerk did find it, is shown by his putting a file mark on it after the court refused to set aside the default. This is complained of by the appellant, and we think justly. The clerk had no right to file the summons nunc pro tuno, without leave of the court. It would be dangerous to tolerate such a practice, as it would grow by indulgence, until finally all the process and orders of the court would be made subject to the correction of the clerk. But this does not change the important fact that the summons was served on the defendant in due time according to law, and duly presented to the court, and passed to the clerk to be filed. At that moment the clerk should have asked the direction of the court as to the file mark it ought to bear, and the court would at once have instructed him of the day the default was taken, for on that day and occasion the summons was in fact presented to the court, and on which the default was allowed.
As to the authority in the attorneys to bring the suit, that was apparent from the fact they were attorneys of the court, and nothing was shown to warrant the court in believing they had improperly assumed authority in this instance. The attorneys had the note and produced it on the trial. That is, of itself, a strong presumption of authority to sue on it. That presumption must prevail, unless something is shown to countervail its force, and nothing of this nature has been shown. Besides, this motion is in the class of motions of a dilatory character, and cannot be entertained after a default. The defendant should have appeared and made the motion on the day he was summoned to appear, and in apt time on that day. Fry v. County of Calhoun et al., 14 Ill. 132; and see Miller v. Metzger, 16 id. 392, and cases there cited.
It must be a very strong case indeed, in which a court will set aside a default regularly obtained, to let in a motion of this character. We do not now recollect a case where it has been done. On an affidavit of merits, a default is usually set aside if a good defense on the merits exists, and the party has been diligent in preparing it.
This brings np the consideration of the affidavit filed by the defendant. We have examined it carefully, and cannot find a solitary fact stated in it, amounting to a defense on the merits; on the contrary, there is a distinct admission that the note was due the plaintiff, and no part of it paid. The defendant’s great complaint was, that as he had acted as trustee and friend of the plaintiff, it was quite unaccountable plaintiff should have found another friend and put his business in his hands, a part of which was to demand the payment of this note. And he acknowledges the pretended agent of the plaintiff did demand payment of him, and showed him a paper as evidence of his authority, which, though inartificially drawn, was such evidence. The affidavit of Clifford, the acting "agent of the plaintiff, explains the whole matter fully. It shows his authority — his honest possession of the note, the purpose for which plaintiff gave it. to him, and his own responsibility as a resident of the city and as a man of large property. It is unnecessary to dilate upon the facts stated in it; it is sufficient to say they show authority, if any could be demanded at this stage of the case, to prosecute the suit.
As to the diligence used by defendant, he has shown none. He was served with process on the 25th of September, and his default entered on the seventh of October, twelve days after service. During all this time he reposed in inactivity, waiting for the return of his counsel, who were professionally employed in an adjoining county, and not until he heard the judgment had been entered, did he send word to them.
The attorneys did hot leave Chicago until the third day after the service of the process on defendant. In those three days the defendant could have charged them with the defense of this suit, and they would have applied to a brother lawyer to look to the case and prevent, at least, a default. Besides, if his regular counsel did not return in time, why did not the defendant speak to some other lawyer to see to the case until his counsel did return % But' he did nothing, and we are inclined to think, from his affidavit, if he had been industrious and diligent, he could not have established any defense. There are no merits disclosed in the affidavit. In addition to this, in the exercise of a judicial discretion, we are unable to see how the court could be justified, had the default been set aside. As to allowing a counter affidavit, we know of no rule of practice to forbid it, and we think it a good practice in such a case as this, in which the main point of attack was on the authority of the plaintiff to prosecute the suit.
As to the jurat of this counter affidavit wanting a stamp, which is the remaining point, we have to say it is not our opinion one is necessary, when an affidavit is made in the progress of a cause, or on a motion in court. It is only by considering jurats certificates, that a stamp is deemed necessary in any case.
We see nothing in the case erroneously determined by the court below, and therefore affirm the judgment.
Judgment affirmed.