Salomon v. McCormick, 95 Ill. App. 332 (1901)

June 4, 1901 · Illinois Appellate Court

95 Ill. App. 332

Moses Salomon v. R. Hall McCormick, Trustee.

1. Practice — Trial Before Issues Made Up, Erroneous. — Where the record fails to show the filing of a replication to a special plea, a trial and judgment in the absence of the defendant and his attorney will be irregular and erroneous.

Distress for Rent. — Appeal from the Circuit Court of Cook County; the Hon. Owen P. Thompson, Judge, presiding. Heard in the Branch ‘ Appellate Court at the March term, 1900.

Reversed and remanded.

Opinion filed June 4, 1901.

Feed L. Brooks, attorney for appellant.

No appearance by appellee.

Mr. Presiding Justice Shepard

delivered the opinion of the court.

This was a proceeding in distress for rent. A declaration consisting of the common counts in assumpsit was filed. To this the defendant (appellant) filed a plea of the general issue and a special plea of new matter. No issue upon either of the pleas was ever joined, nor was any disposition ever made of the special plea. In this condition the cause was not at issue and was not ready for trial. The cause was nevertheless called for trial, in the absence of the defendant, or any counsel representing him, and evidence was heard and a verdict and judgment rendered in favor of appellee.

This was error, there being no waiver of the objection that there was no replication to the special plea or other disposition made of it. Blake v. Miller, 118 Ill. 500; Condon v. Cohen, 88 Ill. App. 333, and cases cited.

The judgment is reversed and the cause remanded.