Garretson v. Strawn

54 Ill. 402

Opinion

Mr. Chief Justice Lawrence

delivered the opinion of the Court:

In this case, Garretson and his wife were both served with . process. The wife pleaded her coverture. Judgment by default was taken against the husband, and a demurrer having been sustained to a replication to the wife’s plea, no further action was taken as to her, but damages were assessed against the husband. This was error. The act of 1869, authorizing a judgment to be rendered against one or more of several defendants in certain cases, only applies to suits on written contracts when the execution of the instrument sued on has been put in issue by plea. Such was not this case, and the common law rule applies. The replication to the plea of coverture being bad, and the demurrer thereto properly sustained, the plaintiff should have dismissed his suit. This is like the case of McLean v. Griswold, 22 Ill. 220, in which the husband and wife were jointly sued, and the wife pleaded her coverture. The judgment is reversed and the cause remanded.

Judgment, reversed.