delivered the opinion of the court.
Swanson v. Rose, 193 Ill. App. 293 (1915)
March 9, 1915
·
Illinois Appellate Court
·
Gen. No. 5,983
193 Ill. App. 293
Carl Swanson et al., Appellants, v. John F. Rose et al., Appellees.
Gen. No. 5,983.
(Not to he reported in full.)
Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding.
Heard in this court at the October term, 1914.
Affirmed.
Opinion filed March 9, 1915.
Statement of the Case.
Action on the ease brought by Carl Swanson and others against John F. Rose, coroner of Rock Island county, and August H. Arp, a physician, to recover for pain and mental anguish caused by the performance by the defendants of an alleged wrongful autopsy on the body of the plaintiffs’ brother.
On a demurrer being sustained to the plaintiffs’ declaration, an amended declaration was filed, which also was held defective on demurrer, and the action was thereupon dismissed.
Two months later the plaintiffs filed a motion to set aside the order of dismissal and to reinstate the action and permit the filing of a second amended declaration. From an order overruling such motion, the plaintiffs appeal.
*294Abstract of the Decision.
1. Pleading, § 453 * —when sufficiency of pleading waived by pleading over. By pleading over after a demurrer is sustained to a declaration, the plaintiff waives his right to insist on the sufficiency thereof.
2. Pleading, § 222*—when election to abide by pleading presumed. A formal election to abide by a1 declaration need not be shown, since it will be presumed, where the plaintiff takes no steps from which its abandonment can be inferred.
3. Appeal and error, § 876*—when decision on demurrer reviewable. Whether a demurrer was properly sustained to a declaration and a suit dismissed will not be reviewed on appeal where the pleading is not set out in the abstract.
4. Appeal and error, § 876*—when denial of leave to file amended declaration reviewable. It will be presumed that a motion for leave to file a second amended declaration was properly denied, when made nearly three months after the dismissal of a cause, where the showing on the motion is not preserved in the bill of exceptions.
5. Appeal and error, § 800*—when motion reviewable. Any motion in an action at law must be embodied in a bill of exceptions, in order to preserve it for review as a matter of record.
Harry M. McCaskrin and Ben A. Stewart, for appellants.
Searle & Marshall, for appellees.