Meinert v. Stookey, 47 Ill. 395 (1868)

June 1868 · Illinois Supreme Court

47 Ill. 395

Henry Meinert et al. v. James M. Stookey et al.

1. Issue of fact—must be disposed of. Where the general issue is pleaded to the common counts in a declaration, and a demurrer to a special count therein is overruled, it is error to render final judgment on such demurrer, without disposing of the issue of fact upon the common counts.

Appeal from the Circuit Court of St. Clair County; the Hon. Joseph Gillespie, Judge, presiding.

This was an action of assumpsit upon a promissory note. The declaration contained a special count and the common counts. To the common counts the defendants pleaded the general issue, and filed a demurrer to the special count. The court overruled the demurrer and rendered final judgment for the plaintiffs upon the demurrer.

The defendants thereupon took this appeal, and insist that the court erred in rendering final judgment upon the dgffiuisi rer, without disposing of the issue of fact upon thex Counts. I J!

Messrs. Winkelman & Dill, for the appellants.

Mr. Wm. H. Underwood, for the appellees.

Mr. Justice Lawrence

delivered the opinion of the Court:

The declaration in this case contained a special count and the common counts. There was a demurrer to the former and the general issue was pleaded to the latter. The court overruled the demurrer to the special count, assessed the damages and gave final judgment without disposing of the issue on the common counts. That this was error was held by this court in McAllister v. Ball, 24 Ill. 149, and Armstrong v. Webster, 30 ib. 333. The judgment must be reversed and the cause remanded.

Judgment reversed.