41 Ill. 115 | Ill. | 1866
delivered tne opinion of the Court:
This was an action of assumpsit, commenced by James E. Yarwood, in the Court of Common Pleas of the city of Elgin, at the January Term, 1864, against Albert Cook and B. C. Brownell. An affidavit was filed, stating that defendants are indebted to plaintiff in the sum of $350 for work and labor, and that Brownell is a non-resident of the State, and that defendants are about to remove their personal property from this State to the injury of plaintiff. A writ of attachment was issued and levied on the property of defendants. A declaration was filed in assumpsit on the common counts.
Before any general appearance was entered by Cook, he filed the following plea in abatement:
Court of Common Pleas of the City of Elgin, January Term, A. D. 1864.
State of Illinois, ) Kane County, City of Elgin, j
James R. Yarwood v. Albert Cook and B. C. Brownell.
And the said Albert Cook, defendant in this suit, by Wheaton, his attorney, comes and defends the wrong and injury, when, etc., and prays judgment of the writ of attachment of the plaintiff in this suit, and that the same may be quashed, because he says that he, the said defendant, at the time of the commencement of this suit, and the suing out said writ of attachment by the said plaintiff, and the making and filing the affidavit in this suit for said writ of attachment was not about to remove his personal property from this State to the injury of the said plaintiff, and this he prays may be inquired of by the country, etc.
CHAS. WHEATOH, Att'y for Deft. Cook.
State oe Illinois, ) ? V gg Kane County, City of Elgin, j
Albert Cook, the above named defendant, being first duly sworn, on his oath says that the above plea is true in substance and matter of fact.
ALBERT COOK
Subscribed and sworn to before me, i this 19th day of April, A. D. 1864. j
R. W. Padelfobd, Clerk.
The venue was afterward changed to the De Kalb Circuit Court. Brownell also filed a plea in abatement, of a misjoinder and non-joinder of parties. Plaintiff below moved the court to strike the plea in abatement filed by Cook, from the files, because the affidavit to the plea was insufficient. The court sustained the motion. Cook then, without leave, filed another plea in abatement, the same as the former, except, at the head of the affidavit was the title of the cause. On motion of plaintiff below, this plea was also stricken from the files. Cook then filed the general issue, and a trial was had before the court and a jury, resulting in a verdict in favor of plaintiff in the sum of $210. A motion for a new trial was entered and overruled, and judgment rendered on the verdict. And Cook brings the case to this court by appeal, and seeks to reverse the judgment on the ground that the court erred in striking his plea from the files.
The only objection urged to the plea, is that the affidavit supporting its truth, does not have at its head, the title of the cause. A plea in abatement must be certain to every intent in particular, and if it fails in this requirement, it is insufficient. The oath as embodied in the record, seems to have been on the same paper with the plea. The plea is properly entitled, of the court, the parties to the suit, with the venxie of the suit, and the jurat follows under the plea. Affiant states “ that the above plea is true in substance and in matter of fact.” Then follows the clerk’s file, in which he says, “ Plea of Cook in abatement, April 19, 1861.” Prom all of these circumstances, we are convinced that both were on one piece of paper, and it is embodied in the record as such.
The object of entitling all pleas, whether in abatement or in bai', as well as other papei’S, is that it may be certainly known to what case they properly belong. And when that unmistakably appears from the paper itself, the reason of the rule is answered. The title of the case and of the court appears at the head of this plea, with the jxu-at underwritten and referring to the plea. Had the name of the parties to the suit been referred to in the plea, it would have been no more certain than it is as pi’esented in the record. We are, therefore, of the opinion, that this plea was sufficient and should not have been stricken from the files.
After a defendant has filed a plea in abatement in a cause, and that has been disposed of, the rules of practice preclude him from filing another of the same character. He may afteiward file pleas in bar but not in abatement. Appellant, therefore, had no right to file an amended plea in abatement after the first was stricken from the files. The court below, then, committed no error in striking it from the files.
But, for the error in striking the first plea in abatement from files, the judgment must be reversed and the cause remanded, with leave to appellee to reply to that plea and for a new trial.
Judgment reversed.