| Ill. App. Ct. | Jan 10, 1888
This was an action in debt brought by appellee to recover from appellant monthly installments which, by a decree in divorce proceedings between said parties, were ordered to be paid by appellant to appellee for the support of their infant child, the care and custody of which was decreed to appellee. The pleas interposed and relied on as a defense were non-assumpsit, and a special plea setting up the terms of the decree, and averring that about February 1, 1885, plaintiff refused to allow him to see his child, at her house, as provided by said decree, and has ever since persisted in such refusal, and has thereby violated the terms of the decree, and her right to demand said money has wholly failed and lapsed.
Neither of those pleas presented a material triable issue. JJon-assumpsit is not a proper plea in an action of debt. Harlow v. Boswell, 15 Ill. 56" date_filed="1853-11-15" court="Ill." case_name="Harlow v. Boswell">15 Ill. 56.
And nothing in the special plea averred amounted to a legal defense.
The only condition in the decree relieving the defendant from the payment of these monthly installments was, that if the said installment, or any part thereof, should thereafter at anytime be diverted from the maintenance of said child, the said allowance should cease. It was proven and not disputed, that defendant had refused to pay, or provide means for the payment of the monthly installments to plaintiff, for a period of thirty-three months, which, at §30 per month, the sum fixed by the decree, amounted to §990. ' The decree was also read in evidence, which, with the other proof, established appellee’s legal right to demand and recover of appellant said sum last above mentioned; and as we view the case, this legal right was not defeated by any sufficient defense, set up by plea or established by proof. Entertaining this view, we deem it unnecessary to comment upon the rulings of the trial court in admitting the evidence objected to by appellant, and refusing to give the instructions requested on his behalf. The jury returned a verdict for §990, in favor of plaintiff, and we think the verdict was warranted by the proof, and the court did not err in entering judgment for plaintiff thereon, or in striking the plea in abatement from the files; it was not filed inapt time. Mills v. Bland’s Ex., 76 Ill. 381" date_filed="1875-01-15" court="Ill." case_name="Mills v. Executors of Bland">76 Ill. 381.
The judgment is affirmed.
Judgment affirmed.