by John Marshall Harlan

“ The objection that replications were not filed when the trial commenced, nor before judgment, with leave of the court, came too late after judgment was entered. In Kelsey v. Lamb, 21 Ill. 559, the supreme court of Illinois said: 'If the defendant has filed his plea, and the other party fails to reply within the time required by the rules of the court, he has a right to judgment by default against the plaintiff, but until he obtains such default the pleas cannot be considered as confessed by the plaintiff. It is the default which gives the right to consider and act upon the pleas as true. ”

“ The principal assignments of error have nothing of substance in them. When the plaintiffs agreed to admit upon the trial that the defendant's absent witness would testify as stated in the affidavit filed for a continuance of the case, and the court thereupon ruled that the trial should proceed, attention was not called to the fact that replications had not been filed to the first and third pleas, and judgment was not asked upon those pleas for want of such replications. ”

“ Besides, the affidavit, though no part of the declaration itself, was a statutory pleading, which might have been amended upon such a suggestion. Healy v. Charnley, 79 Ill. 592; McKenzie v. Penfield, 87 Ill. 38. ”