Doyle v. City of Sycamore

• Decision Date: 18 December 1901
• Citation: 61 N.E. 1117,193 Ill. 501
• Parties: DOYLE v. CITY OF SYCAMORE.
• Court: Illinois Supreme Court

193 Ill. 501

61 N.E. 1117

DOYLE

v.CITY OF SYCAMORE.

Supreme Court of Illinois.

Dec. 18, 1901.

Appeal from appellate court, Second district.

Action by Mary Doyle against the city of Sycamore. From a judgment of the appellate court (81 Ill. App. 589) affirming a judgment in favor of defendant, plaintiff appeals.

W. C. Kellum and Jones & Rogers, for appellant.

Carnes & Dunton and John Faissler, for appellee.

WILKIN, C. J.

On March 7, 1893, appellant sued out a summons in an action on the case against the appellee in the circuit court of Dekalb county, which was returned duly served on the 27th of that month. On June 8th following she filed her declaration, consisting of two counts. On the 21st of June of that year a demurrer was filed to each count of that declaration, which was confessed by the plaintiff. Nothing was done in the case until the 19th day of November, 1896, when an amended declaration was filed, consisting of four counts. On February 27, 1897, a general and special demurrer was filed to each of said counts. The demurrer to the declaration was overruled, and the defendant filed-First, the general issue; and, second, a general plea of the five-years statute of limitations; also four special pleas-one to each count of the amended declaration-setting up the same five-years statute of limitations. To each of these four pleas a general and special demurrer was filed and sustained, and leave given to the defendant to plead over; but that leave was not availed of. Issue was joined on the plea of the general issue, and a general replication filed to the plea of the statute of limitations. On these issues a trial by jury was had, and a general verdict of not guilty returned. Special findings were also returned by the jury at the request of the defendant. Motion by the plaintiff for a new trial was denied, and judgment entered upon the general verdict. The appellate court has affirmed that judgment, and plaintiff prosecutes this appeal.

The appellee seeks on cross errors to question the decision of the circuit court in sustaining the demurrer to its special pleas to the several counts of the amended declaration. It is not in a position to have brought in review that ruling. The record shows that the demurrer was sustained, and leave given defendant to file amended pleas. The rule is elementary that, where a party acquiesces in an order of court sustaining a demurrer to a pleading, and takes leave to plead again, he cannot afterwards assign error upon such ruling. The only object, however, of the special pleas, seems to have been to raise the question whether the amended declaration presented a new and different cause of action from that originally declared upon. We are unable to see how those pleas were necessary for any such purpose. If, as a matter of law, a different right of action was pleaded in the amended counts, and that right did not accrue within five years prior to November 19, 1896, when the amendment was filed, the general plea of five years' limitation was a complete defense, and the special pleas were wholly unnecessary. If the amended counts do state a new and distinct cause of action, plaintiff's right is clearly barred, and no recovery can be had. This is conceded by counsel for plaintiff. In our opinion, a decision of that question will dispose of the case, and render the consideration of other errors assigned unnecessary.

The original declaration avers that the defendant was a municipal corporation; that the plaintiff owned the lots in question, upon which were certain buildings, and that the defendant had erected in the public streets, within 50 feet of her buildings, a water tower or standpipe, which was 135 feet high, and constructed of circular steel or iron plates riveted together, the first course being nine-sixteenths of an inch in thickness and diminishing toward the top to three-sixteenths of an inch, and capable of holding 179,000 gallons of water. The first count then alleges: ‘Which said standpipe, by reason of the fact that there is a constant apprehension that it may fall over upon said dwelling house, and by its great weight injure, crush, or destroy the same, or that it might blow over upon said property, or burst, and flood the same, greatly depreciate the value of said premises for resident or business purposes, and especially depreciate the market value of said premises. Plaintiff avers that by reason of the premises the defendant has greatly injured and damaged the said property of the plaintiff, within the meaning of the constitution and the laws of the state of Illinois; that the defendant has never paid or offered to pay the plaintiff any of the damages so caused to plaintiff's property, nor have any proceedings been instituted by defendant for the purpose of having compensation therefor ascertained; that by reason...