Drake v. Drake

• Court: Illinois Supreme Court
• Writing for the Court: SCHOLFIELD
• Citation: Drake v. Drake, 83 Ill. 526, 1876 WL 10391 (Ill. 1876)
• Decision Date: 30 September 1876
• Parties: CARLTON DRAKEv.ISAAC R. DRAKE.

83 Ill. 526

1876 WL 10391 (Ill.)

CARLTON DRAKE

v.ISAAC R. DRAKE.

Supreme Court of Illinois.

September Term, 1876.

APPEAL from the Circuit Court of De Kalb county; the Hon. THEODORE D. MURPHY, Judge, presiding.

Mr. CHARLES KELLUM, for the appellant.

Mr. R. L. DIVINE, and Mr. JOHN J. MCKINNON, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was assumpsit, by appellee, against appellant, in the DeKalb circuit court. An alias summons to the sheriff of Cook county was served on appellant, and, at the return term of the summons, he appeared and filed the following plea:

+-----------------------------------------------------+
                ¦“STATE OF ILLINOIS,¦)¦ss.¦In the Circuit Court.      ¦
                +-------------------+-+---+---------------------------¦
                ¦DeKalb County.     ¦)¦   ¦October Term, A. D.   1873.¦
                +-----------------------------------------------------+
                

And the said Carlton Drake, in his own proper person, comes and defends, etc., when, etc., and prays judgment of the writ and declaration aforesaid, because he says that, before and at the time of the commencement of this suit, and at all times since the commencement of this suit, the defendant has been, and still is, a resident of the county of Cook, in the State of Illinois, and has not resided in the county of DeKalb, nor been found in or served with process in said cause in the county of DeKalb aforesaid; and the defendant further avers that this action is not a local action, and this the defendant is ready to verify, wherefore he prays judgment of the said writ and declaration, and that the same may be quashed.

CARLTON DRAKE.”

Appellee interposed a demurrer to the plea, which was sustained by the court. Thereupon, appellant asked leave of the court to amend the plea, which was denied.

Subsequently, appellant pleaded the general issue, and, by agreement of parties, a jury was waived, and the cause tried by the court, resulting in a judgment for appellee for $2722.50.

The questions presented for our consideration are, did the court properly sustain the demurrer to the plea, and, if so, was it error to refuse leave to amend it?

Since Kenney et ux. v. Greer, 13 Ill. 432, this court, in speaking of such pleas, has usually styled them pleas in abatement; but the form of their commencement and conclusion has never been the subject of consideration, except in Tiffany v. Spalding, 22 Ill. 493, where it was held that, in practice, under our statute, it could be a matter of no moment whether such plea is technically to the writ or to the jurisdiction; and in Howe v. Thayer, 24 Ill. 246, where the plea is denominated a plea to the jurisdiction of the court, in the nature of a plea in abatement, it was held that it fell within the exception in the statute requiring pleas in abatement to be sworn to, and, therefore, no affidavit need accompany it.

All the cases since Kenney et ux. v. Greer, supra, agree that the statute confers a mere privilege on the defendant, which he will be considered as having waived, unless he shall specially rely upon it...