Grier v. Gibson, 36 Ill. 521 (1864)

April 1864 · Illinois Supreme Court

36 Ill. 521

John C. Grier v. Jacob Gibson.

1. Practice — continuance. A motion for continuance, upon the ground that no copies of the notes on which suit is brought were filed, comes too late, after the defendant has pleaded to the action.

2. Same — waiver of demurrer by plea. While a demurrer to a declaration is pending, the defendant, by filing a plea of the general issue, together with special pleas, waives the demurrer, and no judgment is required to be pronounced on it.

3. Assignment of note — when must be proved. Proof of the assignment of a promissory note is not required to be made, where no affidavit is filed denying it.

Writ of Error to the Circuit Court of Peoria county; the Hon. M. Williamson, Judge, presiding.

''This was an action of assumpsit, brought by the defendant in error, as the indorsee of four promissory notes, against the plaintiff in error, as the maker.

The declaration was filed on the 21st day of January, 1864, and contained four special counts, one on each note, and the common counts.

On the 4th day of February, 1864, a plea of the general issue was filed to the 1st special count and the common counts, and a demurrer to the 2nd, 3rd and 4th special counts.

On the 8th day of February, 1864, a plea of the general issue was filed to the 2nd, 3rd and 4th special counts of the declaration, and also several special pleas.

On the 6th of February, 1864, the defendant below moved for a continuance, because no copies of the notes sued on were set out in the declaration, nor filed in the case, which motion the court overruled.

The cause was tried by the court March 2nd, 1864. The plaintiff below produced the notes sued on, and which were indorsed to him. The defendant below objected to the admissi on of the notes in evidence. The court overruled the objection, and rendered judgment in favor of the plaintiff below for the sum of $587.88.

The defendant brings the cause- to this court upon writ of error, and insists the court below erred in refusing his motion for a continuance; in permitting the assignments upon the notes to be read in evidence without being proven, and in not pronouncing judgment upon the demurrer to the declaration.

Messrs. Cooper & Moss, for the Plaintiff in Error.

Messrs. Johnson & Hopkins, and Messrs. O’Brien & Cratty, for the Defendant in Error.

Mr. Justice Breese

delivered the opinion of the Court:

The motion to continue the cause, because there were no copies filed of the notes on which the suit was brought, was properly overruled, as the defendant had pleaded to the action. The motion to continue, for that cause, came too late. The assignments were not required to be proved, as there was no affidavit filed denying them.

It appears, while the demurrer was pending, the general issue and several special pleas were filed. These pleas waived the demurrer, and no judgment was required to be pronounced on it.

We perceive no ground on which the plaintiff in error can hope to reverse this judgment; there does not appear to be any error in the record, and therefore the judgment must be affirmed.

Judgment affirmed.