Collins v. Montemy
| Citation | 3 Bradw. 182,3 Ill.App. 182 |
| Parties | JAMES COLLINSv.FILMAN A. MONTEMY, Adm'r. |
| Decision Date | 28 February 1878 |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Jefferson county; the Hon. TAZEWELL B. TANNER, Judge, presiding.
Messrs. POLLOCK & SON and GREEN & CARPENTER, for appellant; that the law presumes that all pleadings before a justice are oral, cited Wilson v. Bevans, 58 Ill. 232; Town of Lewiston v. Proctor, 27 Ill. 414; Williams v. Corbett, 28 Ill. 262; Frye v. Tucker et al. 24 Ill. 181.
On appeal from a justice the case is tried de novo:City of Alton v. Kirsch et al. 68 Ill. 261; Minard v. Lawlor, 26 Ill. 302.
Where a suit is prematurely brought, advantage may be taken of it on the trial: 1 Chitty's Pl. 453; Archibald v. Argall, 53 Ill. 307; Harlow v. Boswell, 15 Ill. 56; Nickerson v. Babcock, 29 Ill. 497.
If the justice had jurisdiction, the Circuit Court can only inquire into the merits between the parties: Vaughn v. Thompson, 15 Ill. 39; Swingley v. Haynes, 22 Ill. 214; Thompson v. Sutton, 51 Ill. 213; Allen v. Nichols, 68 Ill. 250; Zuel v. Bowen, 78 Ill. 234.
The summons issued by the justice was the commencement of the suit, and no demand maturing after that time could be given in evidence: Rev. Stat. 1874, 640, § 17; Feazle v. Simpson et al. 1 Scam. 30; Daniels v. Osborn et al. 71 Ill. 169.
Plaintiff must show an indebtedness existing at the time of bringing suit: Hamlin et al. v. Race, 78 Ill. 422; McCoy v. Babcock, 1 Bradwell, 414.
Mr. T. S. CASEY and Mr. C. H. PATTON, for appellee; that an action is premature is matter in abatement only, cited Archibald v. Argall, 53 Ill. 307; Palmer v. Gardiner et al. 77 Ill. 143; Chitty's Pl. 453.
By pleading to the merits, appellant waived his dilatory plea in abatement: Thomas v. Lowy, 60 Ill. 512; Pearce et al. v. Swan, 1 Scam. 266; Gilmore et al. v. Nowland, 26 Ill. 200; Mills v. Ex'rs of Bland, 76 Ill. 381; Lindsay v. Stout, 59 Ill. 491; Conly v. Good, Beecher's Breese, 135; Adams v. Miller, 12 Ill. 27; Wilson v. Nettleton, 12 Ill. 61.
This was a suit brought by appellee against appellant before a justice of the peace, and a judgment was rendered by the justice against the appellant, and appeal was taken to the Circuit Court of Jefferson county, where the case was submitted to a jury, with a like result. A motion for a new trial was overruled by the court, and appellant excepted and brings the record to this court. The points referred to by us in this opinion are fully covered by the rulings of the court below, the exceptions there taken, and the errors here assigned.
The summons was issued by the justice of the peace on the 11th day of November, 1875; was made returnable on the 16th day of that month, and was served on appellant by the constable on the 12th day of said month of November.
The suit was predicated upon a promissory note, dated February 12, 1875, and due nine months after date. This would make it mature on the 15th day of November, 1875. In all computations of time, a month shall be considered to mean a calendar month, and a day shall be considered a thirtieth part of a month. Rev. Stat. Ch. 98, § 16; Ch. 74, § 10; Ch. 131, § 1, tenth clause. Promissory notes other than such as are payable at sight, or on demand, or on presentment, are entitled to days of grace. Rev. Stat. Ch. 98, § 15.
But it is urged by appellee that it should be made to appear that the objection was raised before the justice and by plea in abatement; such is not our understanding of the law. The suing out of the summons was the commencement of the suit. Rev. Stat. ch. 79, § 17; Feazle v. Simpson, 1 Scam. 30.
The cause of action must exist at the time of the institution of the suit, and where the demand has not matured at the time of the institution of the suit, and the general issue is pleaded, the defendant may avail himself of the objection on the trial. Harlow v. Boswell, 15 Ill. 56; Nickerson v. Babcock, 29 Ill. 497; Daniels v. Osborn, 71 Ill. 169; Hamlin, Hale & Co. v. Race, 78 Ill. 422; and authorities there cited. In this latter case the Supreme Court say: “We had supposed no rule was more inflexible or better established than that a plaintiff cannot recover for money not due at the institution of the suit.”
It is a good plea in abatement to the action of the writ that it was prematurely brought, but as this is ground of demurrer or non-suit, it is very unusual to plead it in abatement. 1 Chit. Pl. 422, 453.
We are referred, however, by appellee, to the cases of Archibald v. Argall, 53 Ill. 307, and Palmer v. Gardner, 77 Ill. 143. We do not regard either of these cases as militating at all seriously against the conclusions we have reached in this case.
In Archibald v. Argall supra, the defense was not that the money was not due for the goods sold under and by the terms of the contract of purchase, but that by a subsequent agreement dehors the contract of sale, the plaintiff agreed to extend the time for the payment of the account. The court held that the matter stated in the special plea filed in that case, was in abatement and not in bar of the action. The distinction between that case and the case at bar is...
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Bacon v. Schepflin
...to show that the defendant was indebted to him at the time of the commencement of the suit, or he fails in his action.’ In Collins v. Montemy, 3 Ill. App. 182, suit was brought upon a note which was not yet due, and the contention was made that the nonmaturity of a note could only be set up......
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Milwaukee Mechanics' Ins. Co. v. Schallman
...in the case. In Feazle v. Simpson, 1 Scam. 30, we said: ‘The issuing of a summons is the commencement of a suit.’ See, also, Collins v. Montemy, 3 Ill. App. 182. In Schroeder v. Insurance Co., 104 Ill. 71, it was held that the suit was commenced when the praecipe was filed and the first sum......
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Johnson v. Glover
...grace expired. Rev. St. c. 98, § 15; McCoy v. Babcock, 1 Bradw. 414;Roberts v. Corby, 86 Ill. 182;Reese v. Mitchell, 41 Ill. 365;Collins v. Montemy, 3 Bradw. 182.Henry W. Magee, for appellant.Jameson, Marston & Augur, for appellee.SCOTT, C. J. This suit was brought by Joseph O. Glover again......
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Ropiequet v. Ætna Life Ins. Co.
...such fractional part of a month upon the ratio which such number of days shall bear to thirty. This statute was construed in Collins v. Montemy, 3 Ill.App. 182, where the court held that under this section a note dated February 12, 1875, due nine months after date, matured November 15, 1875......