May v. First National Bank

Appellate Court of Illinois

May v. First National Bank

19 Ill. App. 604, 1886 Ill. App. LEXIS 460

CourtAppellate Court of Illinois

DecidedJune 9, 1886

StatusPublished

Cited by2 cases

This text of 19 Ill. App. 604 (May v. First National Bank) 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.

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May v. First National Bank, 19 Ill. App. 604, 1886 Ill. App. LEXIS 460 (Ill. Ct. App. 1886).

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Opinion

Moran, J.

A point is made on the interplea, by counsel for appellee, which we do not feel at liberty to pass over, and which, as we regard.it as well taken, precludes the consideration, by us, of the question raised upon the record by counsel for appellant.

The plea contains no sufficient averment that Halstead, Haines & Company held title to the real estate in question, at the time of the execution of the deed of assignment. The only statement in the interplea, approaching an averment of title, is the following:

“ Wherefore the said Lewis May, interpleading, says, that the goods, chattels, credits and effects attached and seized, and the real estate levied upon, by the writ of attachment issued herein, were at the time of the attachment and levy, and still are, the property of him, the said Lewis May, as assignee by virtue of said deed of assignment.” This is the mere averment of a conclusion of law from the facts previously alleged in the plea. There is an omission in the pleadings and no intend, ments or inferences can be indulged in by the court to aid the party in whose pleading a material omission occurs. The rule is, when the pleader is stating his right or deriving his title, the construction most unfavorable to himwill be adopted,when there are in the plea allegations which are equivocal or uncertain : Woodworth v. Paine’s Adm’rs, Breese, 375 ; Lemon v. Stevenson, 36 Ill. 52; Henkel v. Heyman, 91 Ill. 96. The plea failing to aver that the grantors of appellant had any title to the real estate at the time of the execution of the voluntary assignment, was fatally defective, and the demurrer was correctly sustained.

Judgment affirmed.

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Moran, J.

A point is made on the interplea, by counsel for appellee, which we do not feel at liberty to pass over, and which, as we regard.it as well taken, precludes the consideration, by us, of the question raised upon the record by counsel for appellant.

The plea contains no sufficient averment that Halstead, Haines & Company held title to the real estate in question, at the time of the execution of the deed of assignment. The only statement in the interplea, approaching an averment of title, is the following:

“ Wherefore the said Lewis May, interpleading, says, that the goods, chattels, credits and effects attached and seized, and the real estate levied upon, by the writ of attachment issued herein, were at the time of the attachment and levy, and still are, the property of him, the said Lewis May, as assignee by virtue of said deed of assignment.” This is the mere averment of a conclusion of law from the facts previously alleged in the plea. There is an omission in the pleadings and no intend, ments or inferences can be indulged in by the court to aid the party in whose pleading a material omission occurs. The rule is, when the pleader is stating his right or deriving his title, the construction most unfavorable to himwill be adopted,when there are in the plea allegations which are equivocal or uncertain : Woodworth v. Paine’s Adm’rs, Breese, 375 ; Lemon v. Stevenson, 36 Ill. 52; Henkel v. Heyman, 91 Ill. 96. The plea failing to aver that the grantors of appellant had any title to the real estate at the time of the execution of the voluntary assignment, was fatally defective, and the demurrer was correctly sustained.

Judgment affirmed.

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19 Ill. App. 604, 1886 Ill. App. LEXIS 460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/may-v-first-national-bank-illappct-1886.

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