Lincoln v. Mclaughlin

• Decision Date: 30 September 1874
• Citation: 74 Ill. 11,1874 WL 9063
• Parties: LUCIUS A. LINCOLNv.HANNAH E. MCLAUGHLIN.
• Court: Illinois Supreme Court

74 Ill. 11

1874 WL 9063 (Ill.)

LUCIUS A. LINCOLN

v.HANNAH E. MCLAUGHLIN.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Whiteside county; the Hon. W. W. HEATON, Judge, presiding.

Messrs. KILGOUR & MANAHAN, for the appellant.

Messrs. SACKETT & BENNETT, and Mr. C. L. SHELDON, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

The first objection urged is, that the court erred in refusing appellant leave to file an additional plea after the jury were impaneled to try the cause. It has always been regarded as purely discretionary with the Judge, after a defendant has pleaded in bar to an action, to file additional pleas, unless it be a plea puis darrein continuance. As a general rule a defendant has ample time to prepare his pleadings before the commencement of the term. But in this case not only so, but there had been a trial, the verdict set aside, and leave given to defendant to file additional pleas, which he had done. Thus it is seen he had the entire vacation to prepare such pleas. When a trial had been had developing all the facts of the case--thus having several months to prepare pleas that attorneys usually require but a few hours to do--it would almost have been an abuse of discretion for the court at that stage of the proceedings to have delayed the case, the business of the court, occasioning expense in that and other causes, and inconvenience to other parties, witnesses and jurors, when the plea would only have presented a defense already made, and when we can see that no right would have been protected.

It is next urged that when appellant pleaded a justification and appellee replied de injuria, to be able to show an abuse of authority appellee should have new assigned and relied upon the abuse of authority as constituting a trespass ab initio.

Chitty, in his work on Pleadings, p. 671, lays down the rule thus: “There are some pleas which rather partake of the nature of new assignments than are properly and strictly so. As, where the defendant abused authority or license which the law gives him, by which he became a trespasser ab initio. In an action brought for a trespass thus committed, when the defendant pleads the license as authority, the plaintiff may reply the abuse. Such a replication, it will be observed, differs from a new assignment, because it does not operate in any manner as a waiver or abandonment of the trespass attempted to be justified, but states matter in confession and avoidance of the justification.” And there is the further difference that the pleadings all relate to one and the same trespass.

There is nothing in this case which requires such a replication. The question presented was, whether appellant wrongfully, and as a trespasser, levied on appellee's property to pay the debt of her husband. If the property was hers, then he became a trespasser, and liable for all damage she sustained thereby. If it was her separate property, and the jury, we think, have rightfully so found, the officer had no more right to seize it than he had that of any other stranger to the execution. We also find that there is, in our opinion, no evidence tending to prove that the husband and wife were joint owners of the property, to justify a levy, upon which to predicate an abuse of authority by selling the wife's interest, as well as that of the husband. Had there been such evidence, then it may probably be true that the abuse of the authority should have been specially replied. The party, by failing to so reply, took the hazard of proving title in appellee, and has rightfully succeeded, and hence such a replication is wholly unnecessary to sustain the verdict.

In this case there was no claim or pretense that there was not means of appellee appropriated to the purchase and improvement of the lot, and that a large portion thereof...