Keith v. Rucker

16 Ill. 389

• Court: Illinois Supreme Court
• Decided: June 15, 1855
• Status: Published

Opinion

Catón, J.

After the defendant had filed his pleas, and before they were replied to by the plaintiff, the parties filed an agreed statement of the facts, upon which it was agreed that the court might try the issue between the parties. The court refused to try the cause till the issue should be made up, and entered a rule against the plaintiff to reply to the defendant’s pleas. This he did by filing a replication, which was not only bad, but entirely foreign and frivolous, which the court rejected, and the plaintiff refused to file any further replication, insisting that he had the right to have the case decided upon the agreed state of facts without an issue. But the court, being of a different opinion, dismissed the cause because the plaintiff refused to make up the issue. There can be no doubt that the court was right in its view of the case, and in dismissing it for want of prosecution. The agreement in express terms provided that the court was to try the issue upon the facts as agreed. It contemplated the formation of an issue to be tried before the court should pass upon the case. Until the issue was formed, the court could not tell what was admitted or denied upon the record. In fact, there was nothing to try, so long as the pleas stood unanswered, and especially so long as the parties had agreed to form an issue, the court was quite right in insisting upon one. This point is entirely conclusive to affirm this judgment, although we have no doubt that the court had a right to inquire if the agreement had been obtained by fraud, and, if it so found, to disregard it.-

The judgment must be affirmed.

Judgment affirmed.