24 Ill. 246 | Ill. | 1860
This record presents the question, whether a plea to the jurisdiction of the court, in the nature of a plea in abatement, must be verified by affidavit. This must depend upon the construction of the first section of chapter one (Scates’ Comp. 247), which is this : “ No plea in abatement, other than a plea to the jurisdiction of the court, or when the matters relied upon to establish the truth of such plea appear of record, shall be admitted or received, by any court of this State, unless the party offering the same, or some other person for him, file an affidavit of the.truth thereof.” This'provision undeniably requires all pleas in abatement that do not go to the jurisdiction, or the truth of which is not proved by matter of record, to be verified by affidavit. But the statute in terms provides, that it is only pleas in abatement, other than those to the jurisdiction, and such as the truth of which appear of record, that shall be so verified. When that provision was adopted, whatever may have been the common law practice, it exempted the latter class of pleas from its operation, and by embracing one class of pleas and exempting another in the enactment, there is a manifest design that those falling within the exception, shall be exempted from the enactment, and shall be governed by a different rule. When they excepted pleas to the jurisdiction of the court from being verified by affidavit, the effect was precisely the same as if the provision had expressly declared that such pleas need not be so verified.
When the statute has prescribed a rule of practice, it cannot be repealed by rules of court, or by practice, however long or uniform it may have been. The legislature has the right to regulate the mode of proceeding in courts, and when it has done so, parties cannot be deprived of its provisions, whenever they choose to invoke its enactments. The plea in this case, was a plea to the jurisdiction of the court over the person of the defendant, and the statute has made no distinction between pleas to the jurisdiction of the person or of the subject matter. Both classes are equally embraced in its provisions. And whether it was verified by affidavit or not, could make no difference as to its validity. The court below therefore erred in striking it from the files. Wherefore the judgment of that court must be reversed, and the cause remanded.
Judgment reversed.