People ex rel. Morris v. Ople

• Decision Date: 21 October 1922
• Docket Number: No. 14745.,14745.
• Citation: 304 Ill. 521,136 N.E. 752
• Parties: PEOPLE ex rel. MORRIS et al. v. OPLE et al.
• Court: Illinois Supreme Court

304 Ill. 521

136 N.E. 752

PEOPLE ex rel. MORRIS et al.

v.OPLE et al.

No. 14745.

Supreme Court of Illinois.

Oct. 21, 1922.

Proceeding in the nature of quo warranto by the People, on the relation of John A. Morris and others, against Fremont Opie and others, to test the legality of the organization of a community high school district. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Appeal from Circuit Court, Peoria County; Charles V. Miles, judge.

Ernest J. Galbraith, State's Atty., of Peoria (Dailey, Miller, McCormick & Radley, of Peoria, of counsel), for appellants.

Cameron & Anderson, of Peoria, for appellees.

THOMPSON, C. J.

This is the second appeal in a proceeding in quo warranto brought to test the legality of the organization of community high school district No. 201 in Peoria county. On the former appeal we held that the plea of justification stated a good defense to the information under the law as it stood at the time judgment was entered in this court. People v. Opie, 301 Ill. 11, 133 N. E. 689. The cause was remanded to the circuit court of Peoria county for further proceedings consistent with the views expressed by this court. When the cause was redocketed the demurrer theretofore filed to the plea was overruled, and the relators, having obtained leave to reply double, filed four replications. To these replications general and special demurrers were filed and sustained. Thereafter an additional replication was filed by leave of court, and a general and special demurrer to this replication was filed and sustained. Thereupon appellants elected to abide by all of their said replications, and a judgment was entered in favor of appellees.

It is first contended that, by filing the additional replication, after demurrer was sustained to the original replications, apppellantshave waived any questions that were raised by said replications. It is an elementary rule of practice that a party waives all objections to the decision of the court in sustaining a demurrer to a pleading when he elects to abandon such pleading and file an amended pleading in its stead. People v. Core, 85 Ill. 248. It is equally well settled that, where the party pleads over after a demurrer has been sustained to his pleadings, he has no right to question the decision on the demurrer. Wann v. McGoon, 2 Scam. 74;Bennett v. Union Central Life Ins. Co., 203 Ill. 439, 67 N. E. 971.

In the instant case the record shows clearly that it was not the intention of appellants to abandon their replications or to waive their right to question the action of the court in sustaining demurrers to them. They did not ask leave to plead over, nor did they file an amended replication. They filed an additional replication, and, when the demurrer was sustained to this pleading, they specifically stated that they abided all their replications. The additional replication was not filed as a substitute for the original replications, but was filed to present a new ground for ousting appellees, it clearly appearing from the record that appellants did not waive their right to question the action of the court in sustaining the demurrers to the four original replications. We see no reason, on principle or authority, why they should be held to abandon their right to question the ruling.

The information filed in this cause was of a general character, and called upon appellees to show by what authority they held the offices of members of the board of education of said district, and exercised the rights and privileges thereof. Appellees justified by setting out all the proceedings by which the district was organized, and by which they were elected to membership on the board. The plea further states that the territory is contiguous and compact, that a building has been rented for high school purposes, that teachers have been hired, that taxes have been levied to maintain the school, that the school has been continuously maintained, and that 36 children are attending the school. The plea concludes with a verification. By their third replication appellants say:

‘That the territory described in said plea as organized into said community high school district is not a contiguous and compact territory, and that no high school established in said district is or will be reasonably accessible to all the inhabitants of said district.’

The special demurrer was properly sustained to this replication for the reason that it denied matters of inducement and tendered an issue on the same. The plea of justification filed by appellees is a special traverse. Its essential parts are the inducement, the denial, and the verification. The matter set up in the inducement must be such as in itself amounts to a sufficient answer, in substance, to the information. The inducement of a special traverse, when the denial under the absque hoc is sufficient, can neither be traversed nor confessed and avoided. Andrews' Stephen on Pleading, §§ 159, 160; People v. Pullman Car Co., 175 Ill. 125, 51 N. E. 664,64 L. R. A. 366;People v. Central Union Telephone Co., 232 Ill. 260, 83 N. E. 829. The replication was also bad for the reason that its allegations were mere conclusions of the pleader. People v. Graham, 301 Ill. 446, 134 N. E. 57.

The additional replication described in detail the size,...