Cushman v. Savage, 20 Ill. 330 (1858)

April 1858 · Illinois Supreme Court

20 Ill. 330

William H. W. Cushman, Plaintiff in Error, v. John Savage, Defendant in Error.

ERROR TO LA SALLE.

After a demurrer to a plea in abatement is overruled, it is not regular to grant leave to reply; the proper judgment on such a plea is, that the writ be quashed.

All that is necessary to an understanding of this case will be found, stated in the opinion of the court.

A. W. Cavarly, for Plaintiff in Error.

T. L. Dickey, for Defendant in Error.

Breese, J.

In this case there was a plea in abatement of the jurisdiction of the court, the plaintiff residing in La Salle, and the defendant in the county of Cass. To the plea the plaintiff demurred, and it was overruled, and the court granted plaintiff leave to reply.

This was erroneous. After a demurrer to a plea in abatement has been overruled, it is not regular for the court to grant leave to reply; for a judgment for the defendant, on such a plea, whether it be on an issue of fact or of law, is, that the writ be quashed. Tidd’s Practice, 642; 1 Ch. Pl. 501; Motherell v. Beavers, 2 Gilm. R. 69; McKinney v. Pennoyer et al., 1 Scam. R. 319; Eddy et al. v. Brady, 16 Ill. R. 396.

The case will be remanded to the Circuit Court of La Salle, with instructions to abate the writ.

Judgment reversed.