Keator Lumber Co. v. Thompson
144 U.S. 434 (1892)

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U.S. Supreme Court

Keator Lumber Co. v. Thompson, 144 U.S. 434 (1892)

Keator Lumber Co. v. Thompson

No. 242

Argued and submitted March 25, 1892

Decided April 4, 1892

144 U.S. 434


An objection that replications were not filed to the defendant's pleas when the trial commenced, nor before judgment, with leave of court, comes too late if made after entry of judgment.

When a defendant is compelled to proceed with a trial in Illinois in a case in which the issues are not made up by the filing of replications to the pleas, and makes no objection on that ground, the failure to do so is equivalent to consenting that the trial may proceed.

In Illinois, the filing by the plaintiff under the statute of that state (2 Starr & Curtis' Stats. 1801) of an affidavit "showing the nature of his demand and the amount due him from the defendant" does not prevent the recovery of a larger sum if a larger sum is claimed by the pleadings and shown to be due by the evidence.

The case was stated by the Court as follows:

Benjamin F. Thompson and Homer Root brought this action of assumpsit against the J. S. Keator Lumber Company for a balance alleged to be due them for cutting and hauling saw logs, etc. The two main grounds of dispute were (1) whether the price for the work was limited by the contract in question to three dollars per thousand feet of saw logs cut and delivered into the boom limits of the Black River, Wisconsin, without extra charge, or whether the plaintiffs, in addition to the above price, were entitled to be paid for the driving or delivery of the logs into said boom limits; (2) whether the plaintiffs had

Page 144 U. S. 435

not overcharged the defendant in the scaling and measurement of the logs.

With the declaration was filed an affidavit by plaintiffs under the statute of Illinois providing that

"If the plaintiff in any suit upon a contract, expressed or implied, for the payment of money, shall file with his declaration an affidavit showing the nature of his demand and the amount due him from the defendant, after allowing to the defendant all his just credits, deductions, and set-offs, if any, he shall be entitled to judgment as in case of default, unless the defendant, or his agent or attorney if the defendant is a resident of the county in which the suit is brought, shall file with his plea an affidavit stating that he verily believes he has a good defense to said suit upon the merits to the whole or a portion of the plaintiff's demand, and, if a portion, specifying the amount, (according to the best of his knowledge and belief),"

etc. 2 Starr & Curtis' Stat.Ill., p. 1801, � 37, § 36.

The defendant filed a plea in abatement, and subsequently pleas of non-assumpsit and set-off, the latter being for an amount exceeding that sued for by the plaintiff. With these pleas, the defendant filed an affidavit of merits in conformity with the above statute.

The parties by written stipulation waived a jury and agreed that the case be set for trial any day not earlier than March 28, 1888. Under this stipulation, the plaintiffs had it set for trial on the day just named. The defendant on that day requested a postponement of the trial until the arrival of its Wisconsin counsel, who had had sole charge of the preparation of the defense, and also because of the absence of its principal witness. The court ruled that unless the defendant showed legal grounds for a continuance, the trial should proceed forthwith. The defendant then entered a motion for continuance based upon affidavit as to what the absent witness would state. The plaintiffs offering to admit upon the trial that the witness, if present, would testify as set forth in the affidavit, the court overruled the motion for continuance and held that the trial must proceed forthwith. To this action of the court the defendant excepted. Thereupon the trial was commenced

Page 144 U. S. 436

on the 28th of March, 1888, in the absence of the defendant's Wisconsin counsel, who, however, arrived before the conclusion of the trial, which continued during the 29th and 30th of March. On the last-named day, but before the trial was concluded, the plaintiffs, without notice to the defendant or its attorney and without obtaining leave from the court, filed with the clerk replications to the defendant's pleas.

On March 31, 1888, the court made a general finding of the issues for the plaintiffs and assessed their damages at $15,568.99, for which amount judgment was entered against the defendant. To this judgment the defendant excepted on the ground that it was excessive in amount.

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