Mount v. Scholes

• Decision Date: 23 March 1887
• Citation: 120 Ill. 394,11 N.E. 401
• Parties: MOUNT v. SCHOLES, Adm'r, etc.
• Court: Illinois Supreme Court

120 Ill. 394

11 N.E. 401

MOUNT

v.SCHOLES, Adm'r, etc.

Supreme Court of Illinois.

March 23, 1887.

Error to appellate court, Third district.

N. M. Broadwell and W. J. Conkling, for plaintiff in error.

Patton & Hamilton, for defendant in error.

MULKEY, J.

At the January term, 1886, of the Sangamon circuit court, S. D. Scholes, administrator of Travis Glascock, deceased, recovered therein a judgment against William Mount for the sum of $3,704.37, which having been affirmed by the appellate court for the Third district, the defendant brings the case here for review. The record shows the following state of facts: Travis Glascock died at the house of William Mount, in Menard county, this state, on the eighteenth day of March, 1882, leaving a last will and testament. The executors named in the will having declined to act, the defendant in error, S. D. Scholes, was appointed administrator of the estate with the will annexed. At the time of Glascock's death, he held notes given by Mount to himself, aggregating, interest included, between two and three thousand dollars. These notes, together with other valuable papers, were kept in a small tin box. About a month before his death, as if apprehending some trouble in respect to them, he caused his business manager, A. J. Barber, to take a copy of them. After his death, the executors, not finding the notes among his other papers, they called at the house of William Mount, and asked his wife, who is a niece of the deceased, what had become of them. In this interview she stated, as is sworn to by two witnesses, that the deceased had given her the notes, and that they were burned. This statement, at least so far as the burning of the notes is concerned, was entirely false, as is shown by subsequent events. The administrator, without having the notes in his possession or power, on the twenty-eighth of December, 1882, brought the present suit upon them. The declaration contained a special count on the notes, and also the money counts. At the February term, 1883, the defendant filed the plea of non assumpsit, and issue was joined thereon.

No further steps seem to have been taken in the case until the September term, 1885, when the defendant filed a plea of former recovery, to which the court sustained a demurrer, and the ruling of the court upon the demurrer is assigned for error. The plea we regard as clearly bad, and consequently there was no error in sustaining the demurrer to it. Without stopping to consider the several objections to it which have been pointed out by counsel, we think its failure to state the time when the judgment was obtained, rendered it substantially defective. In pleading a judgment, either the term of the court at which it was recovered, or the exact date of its rendition, should always be stated; and when taken in vacation, as this one was, the time of its entry by the clerk should be stated. Freem. Judgm. § 450. If such is the general rule when the plea is filed before the issues are made up, it should certainly be applied with more stringency when the plea is not filed until afterwards; for in that case the rights of the plaintiff would depend, to some extent, upon whether the judgment was obtained before or after plea or demurrer. If rendered before, the plea could not properly be filed, except on a special application to the court for that purpose. Millikin v. Jones, 77 Ill. 372;Fisher v. Green, 95 Ill. 94. If rendered afterwards, the matter could only be pleaded puis darrein continuance. The general rule upon this subject at common law is that any matter of defense arising after the commencement of the suit cannot be pleaded in bar of the action generally. If such matter arise after the commencement of the suit, and before plea, it must be pleaded to the further maintenance of the action. But if it arise after plea, and before replication, or after issue joined, whether of law or fact, then it must be pleaded puis darrein continuance. A plea of this kind involves great legal consequences that do not attach to an ordinary plea. It only questions the plaintiff's right to further maintain the suit. When filed, it, by operation of law, supersedes all other pleas and defenses in the cause, and the parties proceed to settle the pleadings de novo, just as though no plea or pleas had theretofore been filed in the case. By reason of pleas of this kind, having a tendency to delay, great strictness is required in framing them. In this respect they are viewed much like pleas in abatement, and, for the same reason, they must, like those pleas, be verified by affidavit. 1 Chit. Pl. (12th Amer. Ed.) 660; 2 Tidd, Pr. (1st Amer. Ed.) 776-778.

Treating the plea under consideration as a plea of puis darrein continuance, it is confessedly bad. Indeed, it has none of the distinctive features of such a plea. Nor has it been pleaded, or treated by the court or counsel, as such. Whereas we have seen the plea in question fails to state the date of the judgment, nevertheless, upon looking into the record, we find it was entered on the second day of March, 1883, which was some time after issue had been joined on the defendant's plea of non assumpsit, which was the only plea in the case. Now, it is clear from what we have already said, if the date of the judgment had been inserted in the plea according to the fact, the plea would without doubt have been clearly had, because the matter set up in it could only have been pleaded puis darrein continuance. This is obviously so, for the reason such matter was only...