164 Ill. 9 | Ill. | 1896
delivered the opinion of the court:
The questions presented by counsel for appellant for our consideration, aside from questions of fact which are not open to review in this court, are few and may be briefly disposed of.
Counsel seem to be under the impression that the Appellate Court decided that by pleading in bar appellant waived its right to assign for error the ruling of the trial court in sustaining the demurrer to the plea in abatement. We do not so understand the opinion of the Appellate Court. That alleged error seems to have been fully considered by the Appellate Court, and it was held that the demurrer was properly sustained. The rule is, that where the defendant pleads over to the merits in response to a judgment quod respondeat ouster, he does not waive the right to assign for error the decision of the court in sustaining the demurrer to the plea in abatement. (Delahay v. Clement, 3 Scam. 200; Weld v. Hubbard, 11 Ill. 573; Union Mutual Accident Ass. v. Riel, 38 Ill. App. 414; Galveston City Railroad Co. v. Hook, 40 id. 547; Branigan v. Rose, 3 Gilm. 123; Harkness v. Hyde, 98 U. S. 476.) This rule was not intended to be changed by anything that was said in Bangor Furnace Co. v. Magill, 108 Ill. 656.
Appellant’s plea in abatement was clearly defective and insufficient, and for most of the reasons assigned in the demurrer. In the first place, the plea is uncertain and argumentative. As stated in the opinion of the Appellate Court by Presiding Justice Scofield, the plea, though not signed by either the defendant or counsel, purports in the body thereof to be by the “Brotherhood of Locomotive Firemen” instead of by the defendant, and does not show that these are the same organizations, except argumentatively, in the introductory part of the plea. It is then averred in the plea that the “Brotherhood Firemen” is not and never was a corporation, non constat the defendant may not have been. After the averment that the “Brotherhood Firemen” was not a corporation, but only a voluntary or mutual benefit association, the question is argumentatively raised in the plea whether or not service of process can be had on such an association by service upon the officers of the subordinate lodges. There is no positive averment in the plea that the defendant is not a corporation, and liable, as such, to service in the manner provided by statute for the service of process upon corporations. Nor is there any averment that the “F. W. Arnold Lodge No. 44,” served as the “subordinate lodge and agent of the defendant,” was not such agent, so that assuming, for the argument,' that the defendant, the “Grand Lodge of the Brotherhood of Locomotive Firemen,” was a corporation, the plea lacks the principal, essential averment that the summons was not served upon its agent. Or, if it were intended to be alleged that the defendant, whether properly designated as the “Grand Lodge of the Brotherhood of Locomotive Firemen” or as the “Brotherhood of Locomotive Firemen,” was not a corporation but only a voluntary association without corporate powers, and was not amenable to service had upon its agents under the laws of this State, it is sufficient to say that there was no such allegation in the plea, and it is only by inference or argument that it can be said that such a question is remotely suggested. It might be perfectly true that the “Brotherhoo'd Firemen” was not a corporation, and still true that the defendant as named in the writ, or the “Brotherhood of Locomotive Firemen” mentioned in the introductory part of the plea, was. Every intendment must be taken most strongly against the pleader. If, then, in considering" the plea it be assumed that the defendant was a corporation, the plea is bad for not denying the agency of the subordinate lodge.
The plea has other substantial defects, but it is unnecessary to lengthen this opinion in their enumeration. They were fully pointed out in the opinion of the Appellate Court. It follows that no error was committed in sustaining the demurrer to it.
At a subsequent term appellant moved the court to quash the return on substantially the same grounds set up in the plea in abatement. This motion was properly overruled. A plea in abatement is waived by interposing an insufficient motion founded upon the same matter. (Union Nat. Bank v. First Nat. Bank, 90 Ill. 56; Holloway v. Freeman, 22 id. 197.) The converse of this proposition is equally true, and we agree with the learned judge who wrote the opinion of the Appellate Court, “that after an insufficient plea in abatement has' been disposed of, a motion to quash the service on substantially the same grounds will not be entertained.”
Counsel for appellant insist that the principal question presented to this court, and the one they desire settled, is, whether or not the officers of a.local lodge are ex officio agents of the grand lodge and whether the local lodge is such agent, and in their argument say: “We invite the attention and ask this court to determine how far a local lodge is the agent of a grand lodge, and to what extent, and in what case, if any, an officer of a local lodge may or may not be considered the agent of a grand lodge.” There is nothing before us from which we can determine the question pressed upon our attention by counsel. The plea in abatement, as we have seen, was not sufficient to raise the question whether or not service was had upon an agent of appellant, and the return of the officer being prima facie true, theretis nothing more to be decided on that score. We had occasion in two recent cases to consider voluntary unincorporated associations as parties in suits brought by and against them. (Fitzpatrick v. Rutter, 160 Ill. 282; Guilfoil v. Arthur, 158 id. 600.) But the questions decided in those cases are not presented in this.
Appellant filed pleas in bar and contested'its liability to appellee, thus fully- entering its appearance in the cause, but no question of law arising under the issues formed on those pleas is presented for our decision. It follows, therefore, that the judgment of the Appellate Court must be affirmed.
Judgment affirmed.