Spaulding v. Lowe, 58 Ill. 96 (1871)

Jan. 1871 · Illinois Supreme Court

58 Ill. 96

Cynthia A. Spaulding et al. v. Francis Lowe et al.

Practice—on overruling demurrer to plea in abatement—waiver. It is error on overruling a demurrer to a plea in abatement, to the jurisdiction of the court, to permit plaintiff to reply to the plea, and such error is not waived by pleading in bar to the action. On overruling the demurrer to the plea, the court should quash the writ and abate the suit.

Writ op error to the Circuit Court of Sangamon county; the Hon. Benjamin S. Edwards, Judge, presiding.

This was an action of assumpsit, brought by Cynthia A. Spaulding and Henry G. Waldo, in the Sangamon Circuit Court, against Francis Low and Alonzo Glenn. A summons was directed to Mason county, where service was had. Defendants appeared and filed a plea in abatement, to the jurisdiction of the court, to which plaintiffs filed a general demurrer, which the court overruled. Thereupon plaintiffs obtained leave and filed a replication. Defendant Glenn, filed a plea of discharge in bankruptcy, and a trial was had by the court and a jury, and the issue of discharge in bankruptcy was found in favor of Glenn, and the issue on the plea in abatement was found against defendant Low, and plaintiffs’ damages assessed at $500. The court, after overruling a motion in arrest of judgment, rendered judgment on the verdict, and the record is brought to this court on error.

Messrs. Ketcham & DeLeuw, for the plaintiffs in error.

Messrs. Matheny & McGuire, and Messrs. Stuart & Brown, for the defendants in error.

Per Curiam:

It was error in the circuit court to give leave to reply, after overruling a demurrer to a plea in abatement, and this court has several times held this error to be cause of reversal. McKinstry v. Pennoyer, 1 Scam. 319; Motherell v. Beaver, 2 Gilm. 70. See also Eddy v. Brady, 16 Ill. 306. The error was not waived by anything subsequently done by defendants.

The judgment must be reversed, the verdict set aside, and judgment quashing the writ entered nunc pro tunc, upon the demurrer.

Judgment reversed.