Mahoney v. Mahoney

• Decision Date: 31 October 1891
• Citation: 139 Ill. 14,28 N.E. 915
• Parties: MAHONEY et al. v. MAHONEY et al.
• Court: Illinois Supreme Court

139 Ill. 14

28 N.E. 915

MAHONEY et al.

v.MAHONEY et al.

Supreme Court of Illinois.

Oct. 31, 1891.

Bill in equity by Margaret Mahoney and others against Bridget Mahoney and others. Margaret, Mary, Edward, and Honora Mahoney sue out the writ of error to reverse the decree dismissing the bill.

Goggin & Winslow, for plaintiffs in error.

Botsford & Wayne, for defendants in error.

PER CURIAM.

This is a writ of error to the superior court of Cook county. Errors were assigned upon the record, but there was no joinder in error. One of the defendants in error, Michael O'Connor, pleaded the statute of limitations,-that the writ of error was not sued out within five years after the entry of the decree. To this plaintiffs in error replied that the writ of error was prosecuted within five years after the entry of the decree, namely, that the decree was entered on the 14th of June, A. D. 1884, and that the writ of error was sued out on the 12th of June, A. D. 1889. To this the defendant in error Michael O'Connor demurred. No reason is shown why this demurrer should be sustained. The facts alleged in the replication are those necessary to raise an issue of fact upon the plea, and, in our opinion, they are sufficiently pleadable. The demurrer admits the allegations of the replication to be true, and, from the inspection we have given the record, this admission is in accordance with the facts as disclosed by it. The effect of the plea is to confess the error assigned, and, the plea being negatived by the allegations of the replication, which are to be taken as true, the decree must, as to the defendant in error Michael O'Connor, be reversed. Austin v. Bainter, 40 Ill. 82;Thornton v. Houtze, 91 Ill. 199. The rights of the other defendants in error are dependent upon those of said O'Connor, who alone appears in this court. The decree of the court below dismissed complainants' bill for want of equity. The reversal of that decree as to O'Connor necessarily works a reversal as to all. Decree reversed.