88 Ill. 296 | Ill. | 1878
The plea was not faulty. The objections presented on special demurrer were not material, and it was error to sustain the demurrer. Drake v. Drake, 83 Ill. 528. Had the grounds for special demurrer been tenable, the application to amend should have been allowed. This plea was not strictly a plea in abatement. Its effect, if sustained, would not have been mere delay—it would have given defendants a right to have the trial in their own county. This plea is meritorious, and was necessary to the protection of a substantial right granted by statute. The exception, in the statute of amendments, against the amendment of pleas in abatement, does not embrace pleas of this character. The motion to quash the summons ought to have been allowed. On that motion it was shown to the court that this was a case in which the issue and service of this summons was forbidden by statute.
The judgment must be reversed, and the cause remanded.
Judgment reversed.
Mr. Justice Dickey : I think the special demurrer was well taken and was properly sustained, but defendants had the right to amend. I concur in the position that the writ ought to have been quashed on motion.