Beck Bros. v. Independent Brewing Ass'n

60 Ill. App. 423, 1895 Ill. App. LEXIS 298

• Court: Appellate Court of Illinois
• Decided: October 31, 1895
• Status: Published

Opinion

Mr. Presiding Justice Gary

delivered the opinion of the Court.

The parties have here argued the question which we have decided in favor of the appellants in Wilkins v. English, 60 Ill. App. 344, but that question is not in this case.

January 22,1895, the appellees, defendants below, filed a “ special appearance for the sole purpose of moving the court to dismiss the plaintiffs’ suit for the failure to file the declaration within the time required by the statute,” and on the same day obtained an order of the court “ that the time to plead herein be and the same is extended ten days.”

This waived the right of the appellees to object to the time at which the declaration had been filed. Such objection, if valid, would be only in abatement of this suit—not in bar of any—and should therefore be made without taking any step to defend upon the merits. It makes no difference which was first—-the appearance or the order—the effect is the same.

The judgment is reversed with directions to the Circuit Court to set aside the order dismissing the suit and awarding a retorno Tiabendo, and to reinstate the cause for further proceedings.