Bennet v. Philip Schermer & Co., 1 Ill. 352, 1 Breese 352 (1830)

Dec. 1830 · Illinois Supreme Court
1 Ill. 352, 1 Breese 352
William Bennet and Jacob Judy, Appellants, v. Philip Schermer & Co., Appellees

William Bennet and Jacob Judy, Appellants, v. Philip Schermer & Co., Appellees.

APPEAL FROM JO DAVIESS.

When the whole record on its face is so imperfect as not to warrant the entering' of the judgment, it will be reversed.

The appellees brought an action of assumpsit in the court below against the appellants, on a promissory note. The declaration contained but one count. The appellants pleaded a failure of consideration, to which there was a demurrer, which was sustained as to the declaration, and leave given to amend it. The amendment was not made. A plea of non assumpsit was afterwards filed and issue taken thereon. There was then filed a special plea of failure of consideration, to which there was a demurrer and joinder. A plea of payment, and of set-off, to which there was also a demurrer and joinder. These demurrers not having been disposed of, the appellees replied, traversing the pleas of failure of consideration and payment, upon which an issue was made up, and demurred to the plea of set-off, which was sustained, and no further answer to it. In this state of the case, a jury came, who found a verdict for the appellees. A motion was made for a new trial which the court overruled, and judgment entered on the verdict for the appellees, to reverse which judgment an appeal was taken to this court, and the appellants assigned for error, among others, the following, viz.: That after the plaintiff’s demurrer to the defendant’s first plea was sustained as to the declaration, and leave was granted to amend it, the court permitted the cause to go on to *353trial without any amended declaration, and that the court gave judgment for the appellees on the issue found by the jury, when there were several issues of law undisposed of, and the plea entirely unanswered.

Cavarly and Semple, for appellants.

Ford, for appellees.

Opinion of the Court by

Justice Smith.

The extremely imperfect condition of the record in this cause shows that it is impossible to determine the real merits of the points presented to the court. The whole presents a confused mass of pleadings, with leave to amend some, which amendments were never made; demurrers to others appear to be undecided, and issues appear to have been made up, and again abandoned on several points. The whole record can not warrant the entering of a judgment on its face; and this court are bound, for these reasons alone, to reverse the judgment. The court take this occasion to remark on the generally imperfect state of records brought up from the Jo Daviess circuit court, and to intimate the absolute necessity of the proceedings from that court being, hereafter, presented in a more perfect state. It is hoped that the parties hereafter interested in causes brought here for a review, will profit from the intimation here given. Let the judgment be reversed, with the directions to the court below, to proceed de novo in the cause, and the appellants here, recover their costs. (1)

Judgment reversed.