Culver v. Uthe

Appellate Court of Illinois

Culver v. Uthe

7 Ill. App. 468, 1880 Ill. App. LEXIS 257

CourtAppellate Court of Illinois

DecidedNovember 8, 1880

StatusPublished

Cited by1 cases

This text of 7 Ill. App. 468 (Culver v. Uthe) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Culver v. Uthe, 7 Ill. App. 468, 1880 Ill. App. LEXIS 257 (Ill. Ct. App. 1880).

Pincite

Opinion

McAllister, P. J.

The bill of exceptions shows that the court below set aside the default of defendant, Culver, which had been theretofore entered, and gave him leave to plead. The record shows that he filed the plea of the general issue, a special plea of failure of consideration of the notes sued upon, and a plea of set-off. After the filing of such pleas, which were clearly admissible under the general leave given, the record shows that the plaintiff filed a replication to the plea of general issue and that of failure of consideration, by describing them in the introductory part of said replications as the pleas of the said defendants, there being no joint plea of the defendants on file, each having pleaded separately. If such replications can be regarded as properly tendering issues upon Culver’s separate pleas of general issue and failure of consideration, the record wholly fails to show any attempt on the part of the plaintiff to reply to his special plea of set-off; and then the bill of exceptions shows that when the case was called for trial Culver objected to the trial, for the reason that the issues were not completed. The court overruled that objection, to which exception was taken by Culver, and the case proceeded to trial without any replication to the plea of set-off having been filed; such plea averring that the sums of money alleged to be due and owing from the plaintiff to the defendants at the commencement of the suit, exceeded the damages sustained by the plaintiff by reason of the non-performance by the defendants of the several promises and undertakings in the declaration mentioned, the defendants offering to set off and allow the same to the plaintiff as against said damages. This plea, taking it to be true, was a complete bar to plaintiff’s action. By objecting to a trial before issue was taken on that plea, the defendant did not waive the want of a replication; and the plaintiff, by going to trial without a replication, after sack objection was made, must be regarded as admitting that the'plea was true.

The judgment must be reversed.

Reversed and remanded. ■

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McAllister, P. J.

The bill of exceptions shows that the court below set aside the default of defendant, Culver, which had been theretofore entered, and gave him leave to plead. The record shows that he filed the plea of the general issue, a special plea of failure of consideration of the notes sued upon, and a plea of set-off. After the filing of such pleas, which were clearly admissible under the general leave given, the record shows that the plaintiff filed a replication to the plea of general issue and that of failure of consideration, by describing them in the introductory part of said replications as the pleas of the said defendants, there being no joint plea of the defendants on file, each having pleaded separately. If such replications can be regarded as properly tendering issues upon Culver’s separate pleas of general issue and failure of consideration, the record wholly fails to show any attempt on the part of the plaintiff to reply to his special plea of set-off; and then the bill of exceptions shows that when the case was called for trial Culver objected to the trial, for the reason that the issues were not completed. The court overruled that objection, to which exception was taken by Culver, and the case proceeded to trial without any replication to the plea of set-off having been filed; such plea averring that the sums of money alleged to be due and owing from the plaintiff to the defendants at the commencement of the suit, exceeded the damages sustained by the plaintiff by reason of the non-performance by the defendants of the several promises and undertakings in the declaration mentioned, the defendants offering to set off and allow the same to the plaintiff as against said damages. This plea, taking it to be true, was a complete bar to plaintiff’s action. By objecting to a trial before issue was taken on that plea, the defendant did not waive the want of a replication; and the plaintiff, by going to trial without a replication, after sack objection was made, must be regarded as admitting that the'plea was true.

The judgment must be reversed.

Reversed and remanded. ■

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Bluebook (online)

7 Ill. App. 468, 1880 Ill. App. LEXIS 257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/culver-v-uthe-illappct-1880.

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