Donoghue v. Gardner, 24 Ill. 565 (1860)

April 1860 · Illinois Supreme Court

24 Ill. 565

Cornelius Donoghue et al., Appellants, v. Freeland B. Gardner, Appellee.

APPEAL PROM COOK.

By taking issue on a plea, the plaintiff admits that it is correctly filed in the court where the cause is pending.

In this case, the similiter was in the handwriting of the plaintiff’s attorney. Held, that while the similiter remained, the plaintiff recognizes the plea as a plea in the cause, although it was entitled of another court, and before striking the plea out, he should have obtained leave to withdraw the similiter.

This was an action of assumpsit, in the Circuit Court of Cook county, against appellants, as indorsers of a note. Plea of the general issue, entitled of the Cook County Court of Common Pleas, with affidavit of merits. Similiter not signed, but in the handwriting of plaintiff’s attorney. On motion, the plea was stricken from the tiles, and judgment taken by default, from which judgment defendants appealed to this court.

A. W. Windett, for Appellants.

B. G. Cook, and R. J. Winslow, for Appellee.

Breese, J.

By taking issue on® the plea, the plaintiff admitted it was correctly filed in the Circuit Court. The record shows the plea was on file nearly two months before the motion was made to strike it out, and no reason is shown or alleged why it should be stricken out. It appears, on inspection, that the similiter was added by the plaintiff’s attorney, it being in his handwriting, as appears by comparison with other papers in the cause, confessedly in his handwriting.

Whilst the similiter remained, the plaintiff recognized the plea as a plea in the cause, and before striking the plea out, he should first have obtained leave to withdraw the similiter. There was an issue made up on the plea, and we see no reason why it should have been disposed of in this summary way. The judgment is reversed, and the cause remanded.

Judgment reversed.