Kettenring v. Northwestern Masonic Aid Ass'n

99 F. 532, 1900 U.S. App. LEXIS 5039

Opinion

KOHLSAAT, District Judge.

In view of section 914 of the Revised Statutes, and in order to promote uniformity in common-law pleadings between the state and federal courts of this district, the decision of the Illinois supreme court in Gunton v. Hughes, 181 Ill. 132, 54 N. E. 895, will be followed in this case. While the earlier decision of that court in the case of Insurance Co. v. Baker, 153 Ill. 240, 38 N. E. 627, is contrary to the decision in the Gunton Case, still the later case should govern, even though the former was not referred to nor expressly overruled. The special demurrer, to the declaration is, therefore, sustained upon the ground that the matters in' avoidance of the limitation in the policy which was set up in the pleas to the first declaration herein should be availed of by replication under the state practice, and not by amendment to the declaration.