Motherell v. Beaver

7 Ill. 69

Opinion

The Opinion of the Court was delivered by

Purple, J.

Footnotes

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The defendant in error in this case sued the plaintiff in error in the Bureau Circuit Court, in an action of trespass qaare clausum fregit.

In his declaration, the plaintiff below claims damages for an entry and trespass upon certain real estate, and for taking and carrying away personal property therefrom.

The defendant in that Court pleaded, in abatement, that the premises, property, goods and chattels, in the said plea and declaration mentioned, were the property of the defendant in error and one John Beaver, and not of said defendant alone; which plea was duly verified by affidavit; to which plea the plaintiff below demurred, and the defendant in that Court joined in demurrer.

Upon the hearing, the Court overruled the demurrer. The plaintiff below then asked and obtained leave of the Court to file his replication denying the truth of the plea; to which decision the defendant below excepted, and contended that the judgment of the Court, on overruling the demurrer to said defendant’s plea, should have been that the writ be quashed.

The cause was then submitted to the Court for trial, and the Court, after hearing the evidence, found the defendant below guilty of the trespass in manner and form as stated in the declaration, and assessed damages against the said defendant.

Several errors are assigned; one of them, being decisive of the case, will only be noticed. It is, that, on overruling the demurrer to the plea in abatement, the Court should not have permitted the replication to be filed, but should have given judgment, that the writ be quashed.

This was manifestly erroneous. The question is distinctly settled by this Court in the case cf McKinstry v. Pennoyer, 1 Scam. 319. It is there held, and I believe it is the doctrine of all the books, that when a demurrer to a plea in abatement is overruled, the judgment of the Court should be, that the writ be quashed; that this is settled law, and not a matter for the exercise of discretion in the Court.

The judgment of the Circuit Courtis reversed with costs, and judgment entered in this Court, that the writ be quashed.

Judgment reversed.

Wilson, C. J., did not sit in this case.