Beck Bros. v. Independent Brewing Ass'n, 60 Ill. App. 423 (1895)

Oct. 31, 1895 · Illinois Appellate Court
60 Ill. App. 423
Beck Brothers v. Independent Brewing Association et al.

Beck Brothers v. Independent Brewing Association et al.

1. Waiver—Declaration Not Filed in Time.—The right to object that" the declaration is not filed in time is waived by asking for and obtaining an extension of time in which to plead.

2. Declaration—Not Filed in Time—When to Object.—The objection that the declaration is not filed in time, if well taken, is in abatement only, and not in bar of the suit, and must be made before any steps are taken to defend the suit upon its merits.

Replevin,—Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.- Heard in this court at the October term, 1895.

Reversed with directions.

Opinion filed October 31, 1895.

*424Morris Frisch, attorney for appellants.

Sohintz & Ives, attorneys for appellees.

Mr. Presiding Justice Gary

delivered the opinion of the Court.

The parties have here argued the question which we have decided in favor of the appellants in Wilkins v. English, 60 Ill. App. 344, but that question is not in this case.

January 22,1895, the appellees, defendants below, filed a “ special appearance for the sole purpose of moving the court to dismiss the plaintiffs’ suit for the failure to file the declaration within the time required by the statute,” and on the same day obtained an order of the court “ that the time to plead herein be and the same is extended ten days.”

This waived the right of the appellees to object to the time at which the declaration had been filed. Such objection, if valid, would be only in abatement of this suit—not in bar of any—and should therefore be made without taking any step to defend upon the merits. It makes no difference which was first—-the appearance or the order—the effect is the same.

The judgment is reversed with directions to the Circuit Court to set aside the order dismissing the suit and awarding a retorno Tiabendo, and to reinstate the cause for further proceedings.