Edbrooke v. Cooper

• Court: Illinois Supreme Court
• Writing for the Court: SCHOLFIELD
• Citation: Edbrooke v. Cooper, 79 Ill. 582, 1875 WL 8692 (Ill. 1875)
• Decision Date: 30 September 1875
• Parties: GEORGE H. EDBROOKEv.WILLIAM S. COOPER et al.

79 Ill. 582

1875 WL 8692 (Ill.)

GEORGE H. EDBROOKE

v.WILLIAM S. COOPER et al.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. S. M. DAVIS, for the appellant.

Messrs. CARTER, BECKER & DALE, for the appellees.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

On the 6th day of April, 1874, appellant filed his demurrer to the plaintiffs' declaration, and, three days afterwards, that is to say, on the 9th, he also filed his plea of non assumpsit thereto. The record recites that, on the next day, the 10th, “This day came the plaintiffs to this suit, by Carter, Becker & Dale, their attorneys, and the defendant, by S. M. Davis, his attorney, comes also, and this cause coming on now to be heard upon the defendant's demurrer to the plaintiffs' declaration filed in said cause, after argument of counsel, and due deliberation by the court,” * * “the court, being fully advised in the premises, finds that said declaration is sufficient in law, and orders that said demurrer be and the same is hereby overruled.” On the 11th of the same month the record shows the plea of non assumpsit was, on motion of plaintiffs' attorneys, stricken from the files “for want of affidavit of merits, in pursuance of the statute in such case made and provided,” and judgment was then entered against the defendant for want of a plea. Subsequently, the record was, by order of the court, amended by striking out the words, “for want of affidavit of merits, in pursuance of the statute in such case made and provided.”

The errors assigned question the regularity of the action of the court in sustaining the demurrer, and in subsequently striking the plea from the files.

There is no pretense that the declaration was, in fact, obnoxious to demurrer; but it is insisted the filing of the plea subsequently to the filing of the demurrer, was an abandonment of the demurrer, and withdrew the question presented by it from the consideration of the court.

It has been held in Nye v. Wright, 2 Scam. 222, and Grier v. Gibson, 36 Ill. 521, that a defendant, by filing a plea to a declaration, waives an antecedent demurrer, but this can hardly apply to the plaintiff, unless he joins issue on the plea.

It is an old and familiar rule of pleading, that a party is not allowed to both plead and demur to the same matter. Stephens on Pleading, (9th Am. Ed.) 278.

The record distinctly shows that ...