WILEY v. MICHELMORE, 325 Ill. App. 259 (1945)

59 N.E.2d 342

Gen. No. 42,851. (Abstract of Decision.)Appellate Court of Illinois, First District.
Opinion filed February 14, 1945 Released for publication March 5, 1945

PLEADING, § 85.1[*] — answer taken as true. Upon plaintiffs’ complaint for furnishing legal services, wherein defendant’s answer set up affirmative defense that plaintiffs’ cause of action did not arise within five years immediately preceding filing of complaint and was barred by statute of limitations, no reply to answer having been filed when trial court considered plaintiffs’ petition to vacate order dismissing cause for want of prosecution, such petition not referring to that affirmative defense, held that trial court, under circumstances, had no other alternative but to take defendant’s answer as true, and taking her answer as true, it was apparent that cause had no merit, although plaintiffs may have showed good cause in their petition.

Appeal from the Superior Court of Cook county; the Hon. MICHAEL L. McKINLEY, Judge, presiding.

Order affirmed. Heard in the third division, first district, this court at the October term, 1943.

Richard F. Hahn, for appellants;

Prank R. Reid, Charles A. O’Connor and Gerald T. Wiley pro se;

Elliodor M. Libonati, for appellee;

Abraham Miller, of counsel.

Opinion by JUSTICE KILEY.

Not to be published in full. Opinion filed February 14, 1945; released for publication March 5, 1945.

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