Fonville v. Monroe

74 Ill. 126

• Court: Illinois Supreme Court
• Decided: September 15, 1874
• Status: Published

Opinion

Mr. Justice Scott

delivered the opinion of the Court:

The point is urged that the name of Charles D. Eeed appears in the summons, as one of the plaintiffs, but not in the declaration, and because of the omission it is insisted it was error to enter judgment in Ms favor, with the other plaintiffs. Objections of this character cannot be taken for the first time in this court. Variances between the writ and declaration are matters pleadable in abatement. Ro attempt was made to avail of the error in the court below. This not having been done, the alleged variances, if any exist, cannot now be assigned for error. Reed was a plaintiff in the suit, and the judgment in his favor, with the other plaintiffs, was proper. Prince v. Lamb, 1 Breese, 378.

Appellant Dunham was not served with process, and it is insisted, inasmuch as his plea was stricken from the files, there was no appearance, and, therefore, no judgment could be rendered against him.

Both defendants had filed the general issue to the common counts and a demurrer to the special count of the declaration. The demurrer was overruled, and the plea stricken from the files. Afterward, as appears from the record, the defendants, on their own motion, obtained an extension of time in which to file a plea with an affidavit of merits. TMs was a full appearance, and the judgment against both defendants was proper.

The other questions raised are answered by the opinion in Fonville v. Sausser et al., 73 Ill. 451.

The judgment will be affirmed.

Judgment affirmed.