after making the foregoing statement, delivered the opinion of the court.
Appellee has assigned a cross-error to the effect that it was error to overrule the motion to quash the writ of certiorari.
Appellant claims that the court erred in excluding evidence, in giving plaintiff’s instructions, and that the verdict is against the weight of the evidence.
By entering his appearance and asking a continuance, appellee waived his right to have the writ of certiorari quashed. This mode of taking an appeal is provided by statute. The Circuit Court had, by law, jurisdiction of the subject-matter, and the entry of appellee’s appearance gave it jurisdiction of his person, after which he should, at the earliest moment, have made his motion to quash. Instead of doing that, he waited until the cause was reached for trial, when he asked a continuance for one week, which was granted him, and the case set down for hearing. By this action he waived all irregularity in the method of appeal. The motion to quash goes to the jurisdiction of the court to entertain the appeal. Pearce v. Swan, 1 Scam. 266-9; Easton v. Altum, Id. 250; Mitchell v. Jacobs, 17 Ill. 235-7; Roberts v. Thompson, 28 Ill. 79; Roberts v. Formhalls, 46 Ill. 66.
In view of the fact that there were no specifications or contract as to the character of cottage to be built by Thompson, except that it was to be a frame cottage, to be not less than twenty by forty feet, we are not prepared to hold it was reversible error for the court to sustain the objections to the questions on cross-examination, by which appellant’s counsel, it seems, expected to elicit a statement by Thompson as to what he had done on the house after December 3, 1895, and also what the witness had stated on the trial of a similar suit he would complete the building.
The witness had stated previously that he had done work on the building about one year after December 3,1895, but no offer was made by counsel to show the nature of the work which Thompson had done, and for all we are able to tell, from the record, it may have been work which was in no way necessary to the completion of the house. Unless we could see that the evidence was material, it was not error to exclude it. Berkowsky v. Cahill, 72 Ill. App. 101, and cases cited; Nonotuck Silk Co. v. Levy, 75 Id. 5-9.
The question as to what the witness testified to in a similar suit, being evidently for purposes of impeachment, contains no specification of time or place, and the objection thereto was therefore properly sustained.
We are of opinion that appellant’s criticisms of the plaintiff’s first instruction are not sound. It leaves the jury to determine from the evidence what was due from appellant to Thompson, and does not exclude from the jury any defense of appellant.
The second instruction of plaintiff was erroneous in that it tells the jury they may allow interest for unreasonable and vexatious delay after December 15, 1895. There is no evidence on which to base this part of the instruction.
This suit was begun December 11, 1895. Ho claim is made that there was delay of payment prior to the commencement of suit; the defense to it seems to have been made in good faith, and we know of no decision of the courts holding that a delay caused by a defense made in good faith is unreasonable or vexatious. They seem to be to the contrary. Sammis v. Clark, 13 Ill. 544; Aldrich v. Dunham, 16 Ill. 404; Franklin County v. Layman, 145 Ill. 145-50; Devine v. Edwards, 101 Ill. 132-48.
In the Aldrich case, supra, the court say: “ To appear and defend a suit is a right which can not be construed into unreasonable and vexatious delay of payment without impairing the right itself.” For this reason, under the evidence in this case, the allowance of interest was not a question for the jury, and it should not have been submitted to them.
Appellant contends that the $900 note and one interest note of $31.50 were due to appellant on December 1, 1895, the one by being declared due in default of payment of interest when due, and the other by its terms, and therefore that the verdict should have been for appellant.
As to the $900 note, it appears that on December 3,1895, appellant made a statement of the amount due from him, $144.65, which he gave to Thompson, in which he said nothing of a counter-claim against Thompson, and the jury were justified from this evidence in finding that the $900 note was not claimed to be due, and moreover the evidence fails to show for what reason appellant declared this note due. Also, it was the joint note of Thompson and his wife. The note of $31.50, which was overdue, was a proper claim of set-off against Thompson, and should have been allowed as a set-off in favor of appellant by the jury. There could be no greater recovery in this case against appellant than there could have been, had the suit been by Thompson alone. That the garnishing creditor can have no greater rights against the defendant than the nominal plaintiff could have, is the established law.
As to whether the house was completed when the judgment was confessed, there was a conflict in the evidence, and we can not say, especially as there were no specifications ae to the character and manner of its completion, that the jury were not justified in finding that it was then complete. They might have found that a painting of the house two coats, or painting it at all, as well as the other matters testified to by appellant’s witnesses, were not necessary to a completion.
If the appellee shall, within ten days from the filing of this opinion, remit the sum of $30.52, apparently allowed for interest, and the further sum of $37.40, being the amount due on the interest note due October 15, 1895, and interest to the date of the verdict, the judgment will be affirmed for the balance, $106.39; otherwise the cause will be reversed and remanded.
The appellee will pay all costs in this court. Reversed and remanded.