J. J. Badenoch Co. v. Bartnick 205 Ill. App. 623

J. J. Badenoch Company, Appellee, v. Alfred J. Bartnick and Gustav P. Bartnick, Appellants.

Gen. No. 22,406.

(Not to be reported in full.)

Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.

Reversed and remanded.

Opinion filed May 29, 1917.

Statement of the Case.

Assumpsit was brought by J. J. Badenoch Company, a corporation, plaintiff, against Bartnick & Son Company, a corporation, defendant. Thereafter the declaration was amended by adding Alfred J. Bartnick and Gustav P. Bartnick, copartners, as additional defendants, and the original defendant was dismissed from the case. Defendants’ pleas were stricken on plaintiff’s motion and a default entered against defendants, from a judgment entered on which they appeal.

*624Abstract of the Decision.

1. Pleading, § 141*—when affidavit of claim, in support of amended declaration is necessary. Where plaintiff amends his dec- ’ laration by adding two other defendants and dismisses the original defendant from the cape, an affidavit of claim in support of the amended declaration against the added defendants is indispensable to the right of the court to enter judgment without other proof.

2. Pleading, § 141*—when contention that plaintiff’s claim is not supported by proper affidavit of merits is not waived. The contention that plaintiff’s claim is not supported by a proper affidavit of merits or other competent evidence is not waived by defendants where their affidavits of merits were stricken from the files and judgment was taken against them as by default.

Booz & Stoll, for appellants.

Feed H. Atwood, Charles O. Loucks and Vernon R. Loucks, for appellee.