Dawdy v. Wright, 120 Ill. App. 279 (1905)

April 20, 1905 · Illinois Appellate Court

120 Ill. App. 279

John T. Dawdy v. Rebecca Wright.

1. Surrejoinder—when overruling demurrer to, not reversible error. The overruling of a demurrer to a surrejoinder is not reversible error where there is one good plea to the declaration.

Action of replevin. Appeal from the County Court of Moultrie County; the Hon. E. B. Hutchinson, Judge, presiding.

Heard in this court at the November term, 1904.

Affirmed.

Opinion filed April 20, 1905.

R M. Peadro, for appellant.

Spitler & Jennings, for appellee.

Mr. Justice Gest

delivered the opinion of the court.

This suit is in replevin by appellee ■ against appellant. Appellant pleaded, first, property in defendant and not in plaintiff; second, non detinet; third, non cepit; fourth, the usual plea of justification by an officer under a writ of execution. Issues were made upon the first three pleas. Three replications were filed to the fourth plea. Appellant demurred to the first replication to the fourth plea and his demurrer was sustained. To the second replication to the fourth plea he made rejoinder and to this rejoinder appellee demurred and his demurrer thereto was sustained. Error is not assigned upon the action of the court sustaining this demurrer nor could error be successfully assigned upon it. To the third replication to the fourth plea appellant rejoined and appellee filed her surrejoinder, to which appellant demurred and his demurrer was overruled. Error is assigned by appellant upon the overruling of this demurrer. From the foregoing statement it will be seen that no issue upon the fourth plea was presented to the jury in the trial court and that no question arises upon it in this court. By the record presented in this court appellee’s second reply to that plea stands confessed to be good and neither traversed nor avoided. One good reply to a plea is enough. It is consequently of no importance whether appellant’s demurrer to appellee’s surrejoinder to appellants rejoinder to appellee’s third replication to the fourth plea was sustained or overruled. By the holding of the court and the acquiescence therein of appellant, both in the trial court and this court, the fourth plea is eliminated. The only issues, therefore, upon which the cause could be tried, were those made upon the pleas of non cejpii, non detinet and of property. Upon these issues appellee made satisfactory proof, appellant made none, and the verdict and judgment were for appellee. The entire argument of appellant is upon matters not before this court. We decline the discussion. The abstract furnished to us by appellant’s counsel is so wretchedly prepared we would have been entirely justified in' affirming the judgment for want of an abstract.

The judgment will be affirmed.

Affirmed.