Herring v. Poritz

• Citation: 6 Bradw. 208,6 Ill.App. 208
• Parties: SILAS C. HERRING ET AL.v.ALBERT PORITZ.
• Decision Date: 31 March 1880
• Court: United States Appellate Court of Illinois

6 Ill.App. 208

6 Bradw. 208

SILAS C. HERRING ET AL.

v.ALBERT PORITZ.

Appellate Court of Illinois, First District.

March Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Opinion filed March 29, 1880.

Messrs. HOLMES, RICH & NOBLE, for appellants; that the action was barred by the Statute of Limitations, cited Angell on Limitations, § 323; Tidd's Pr. 16.

Messrs. D. C. & C. W. NICHOLS, for appellee; that the judgment will not be disturbed unless against the weight of evidence, cited Reynolds v. McCormick, 62 Ill. 412; Neustadt v. Hall, 58 Ill. 172; Wilson v. Bevans, 58 Ill. 232; Goodell v. Woodruff, 20 Ill. 191; C. & R. I. R. R. Co. v. Coal & Iron Co. 36 Ill. 60; C. & A. R. R. Co. v. Shannon, 43 Ill. 338; Davis v. Hoeppner, 44 Ill. 306; Newman v. Lombard University, 62 Ill. 195; McFerran v. Chambers, 64 Ill. 118.

Interest is recoverable under the common counts: Tucker v. Page, 69 Ill. 183; McConnel v. Thomas, 2 Scam. 313; 1 Chitty's Pl. 358.

The copy of the account filed with the declaration is no part of the declaration, and must be preserved by bill of exceptions: Eggleston v. Buck, 24 Ill. 262; Humphrey v. Phillips, 57 Ill. 132; Quincy Whig Co. v. Tilson, 67 Ill. 351; Mo. Riv. Tel. Co. v. Nat. Bank, 74 Ill. 217.

As to meaning of nonsuit: 2 Burr. Law Dic. 242; 3 Black. Com. 376; 3 Chitty's Pl. 910.

The action was not barred by the statute: Roland v. Logan's Ex. 18 Ala. 314; Young v. Davis, 30 Ala. 219; Meisse v. McCoy's Adm'r, 17 Ohio, 229; Wintermute v. Montgomery, 11 Ohio, 446.

MCALLISTER, J.

In this case, the declaration was upon the common counts in assumpsit. Among other pleas by defendants, was that of the Statute of Limitations of five years, to which plaintiff replied, the bringing of a former suit upon the same causes of action within that time, in which he was nonsuited, averring that the time limited from bringing such action expired during the pendency of that suit, and that he brought this present suit within one year from such nonsuit. Defendants, by rejoinder, traversed the averment that plaintiff was nonsuited in such former suit; and by further rejoinder, averred that intervening said nonsuit and the bringing of this present suit, plaintiff brought an action upon the same causes of action in the County Court of Cook county, and voluntarily dismissed the same. To this last rejoinder, plaintiff demurred, and the court sustained the demurrer. On the trial before the court without jury, the plaintiff, to sustain the issue as to his having been nonsuited, offered in evidence the record in the former suit, being that of the Superior Court, to which defendants objected; the court overruling the objection, the record was admitted in evidence and defendants excepted.

That record showed that the cause was called for trial, and defendants were present by their attorneys, but plaintiff failed to appear either in person or by attorney, and being three times called, his default was entered and on motion of defendants' attorneys the suit was dismissed and judgment went against plaintiff for costs.

The question is, whether that was a nonsuit within the meaning of Sec. 25 of the Statute of Limitations, which is as follows: “In any of the actions specified in any of the sections of said act, if judgment shall be given for the plaintiff, and the same be reversed by writ of error or upon appeal, or if a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff, or if the plaintiff be nonsuited, then if the time limited for bringing such action shall have expired during the pending of such suit, the said plaintiff, his or her heirs, executors or administrators, as the case may require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after.” R. S. 1874, p. 676.

The words of a statute, if of common use, are to be taken in their natural, plain, obvious and ordinary signification and import; and if technical words are used, they are to be taken in a technical sense, unless it clearly appears from the context or other parts of the instrument, that the words were intended to be applied differently from their ordinary or their legal acceptation. 1 Kent's Com. 462; Clark v. City of Utica, 18 Barb. 451.

Sedgwick says: “When technical words occur in a statute they are to be taken in a technical sense, unless it appears that they were intended to be applied differently from their ordinary or legal acceptation. So, when legislating upon subjects relating to courts and legal process, we are to consider the legislature as speaking technically, unless from the statute itself it appears that they made use of the terms in a more popular sense.” Sedgwick Const. of Stat. 221; Merchants Bank v. Cook, 4 Pick. 405; Snell v. Bridgewater Manufacturing Co. 24 Pick. 296.

The word “nonsuited” in the above statute has a well understood technical meaning, and being employed in a statute relating to proceedings in courts, it should be taken in a technical sense, there being nothing in the context to show to the contrary. That meaning is “adjudged to have deserted the suit by default of appearance as plaintiff. Nonsuit is to determine of record that the plaintiff drops his suit on default of appearance when called in court. When a plaintiff being called in court declines to answer, or when he...