125 Ill. 280 | Ill. | 1888
delivered the opinion of the Court:
This action was brought in the circuit court of Cook county, by Lillie Gr. Cook, against James K. Fisher, and was to recover for personal injuries occasioned by the alleged negligent conduct of defendant’s servant in the management of an elevator. On the trial in the circuit court, plaintiff recovered a judgment against defendant for the sum of $3000. That judgment was afterwards affirmed in the Appellate Court for the First District, and defendant brings the ease to this court on his further appeal.
There was evidence tending to sustain plaintiff’s cause of action, and as all controverted questions of fact have been settled by the findings as to them by the courts through which the cause has come to this court, no discussion in relation to the facts will be had in this court.
It is said in argument it was error in the trial court to strike defendant’s plea in abatement from the files, as was done. It seems that to the original declaration defendant pleaded the general issue. Afterwards, at the April term, 1883, plaintiff, by leave of court, amended her declaration by adding two counts. No new rule was then laid on defendant to plead again to the declaration as amended, but so far as the record shows, the original plea of not guilty stood as to the amended declaration.' At the September term, 1883, of the court, while the record was in this condition, and without withdrawing the plea of not guilty that had been filed, and without leave of court obtained for that purpose, defendant filed a plea in abatement, in which it was averred, “the building and property mentioned in the declaration is not, and never was, the property nor in the possession of James K. Fisher, but is, was and always has been the joint property and in the joint possession of James K. Fisher and one Archibald Fisher, who is still living; and also that the servant mentioned in the declaration is not, and never was, in the employ of said James Ii. Fisher, but is and was, at the time mentioned in the said declaration, in the joint employ of said James K. Fisher and said Archibald Fisher.” This plea was not sworn to by defendant, but by one George B. Fleisheim, who says he is the agent of defendant, who has been absent from this country, in Europe, for more than a year past, and now permanently resides there. On motion of plaintiff, the plea in abatement was by the court stricken from the files in the cause, to which decision defendant excepted. Thereupon, perhaps on the same day, defendant again filed a plea of not guilty, upon which the trial was had. There was no error in the action of the court in striking the plea in abatement from the files. In the first place, it was not filed in apt time. After the declaration was amended, four terms of court intervened before the plea was filed. Being a dilatory plea, it should have been filed at the earliest practicable time. That was not done. But if it had been, a satisfactory reason for the decision of the court is, that it presented an immaterial issue. The action was for a tort, and if two were liable then each was liable, and the action could properly be brought against either wrongdoer.
More instructions were given on behalf of defendant than the nature of the ease required. Every principle of law that was thought to have any application to the facts, was fully stated in the numerous instructions given at the instance of defendant. But complaint is made that the court refused to give other charges asked. It is seen, on examination, that the substance of all the refused instructions that it was proper to give to the jury, was contained in some of the instructions given for defendant, and the court was under no duty to repeat the same thing a second time.
No serious error is perceived in the action of the court in giving instructions for plaintiff, especially when they are considered in connection with the facts of the case to which they were applicable.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
