Me. Justice G-reeíl
Suit was brought to the March term of the Circuit Court by appellant against Joseph Hinkle, an insane person, and Walter M. Hezel, his curator, a resident of the State of Missouri, and appointed by the Probate Court of the city of St. Louis. A guardian ad litem was appointed for Rinkle, who filed an answer March 28th, and on the same day the defendant Bezel filed a plea of the general issue. On March 30th the plaintiff dismissed the suit as to the defendant Rinkle, and thereupon the defendant Bezel, by leave of the court, withdrew the general issue and filed a special plea in bar. To this special plea the plaintiff filed a demurrer. After argument this demurrer was carried back and sustained to the plaintiff’s declaration. The plaintiff elected to stand by his declaration, and thereupon judgment was rendered against him for costs. The material question is, did the court err in carrying the demurrer back and sustaining it to plaintiff’s declaration ? That was the final action that resulted in the judgment complained of, and the successive stéps preceding it were the dismissal of the suit as to the insane defendant; withdrawing the plea of the general issue by leave of the court; filing of 'a special plea by defendant Bezel, and filing of general demurrer by plaintiff to said special plea. This special plea was as follows: And for further plea in this behalf, leave, etc., according, etc., the defendant Walter M. Bezel says that the plaintiff ought not to have or maintain the said action against him, because, .he says, that the said Walter M. Bezel, at the time of the commencement of said action was, and ever since then has been, and still is, a resident of the city of St. Louis and State of Missouri, and was not at the time of the commencement of this action, nor has he at any time since then been a resident of the State of Illinois; that at the time of the commencement of said action his co-defendant Joseph Rinkle, was and ever since then has been and still is, a resident of the county of Madison and State of Illinois; that the said Joseph Rinkle is an insane pauper and an inmate of the county hospital for the insane of said county, and has no property or estate in the State of Illinois, and that no conservator, either of the person or estate of said Joseph Rinkle, has ever been appointed in the State of Illinois; that the said Joseph Rinkle has an estate in the State of Missouri which accrued to him hy will of his deceased father, who died in the German Empire, in March, A. D. 1890, and who was a resident of said Empire at the time of his decease, but owned property, real and personal, in said State of Missouri, at the time of his death, and that this defendant is the curator of the estate of the said Joseph Hinkle, in the State of Missouri, by virtue of letters of curatorship issued to him December 12, A. D. 1890, by the Probate Court of the city of St. Louis, State of Missouri, and is not curator or conservator of the person of the said Joseph Hinkle, and this he is ready to verify, wherefore he prays judgment, etc.
By W. F. L. Hadley,
His attorney.
The errors assigned are in permitting “ defendant to withdraw the plea of general issue and file special plea after issue was joined.” “ In not sustaining the demurrer to special plea.” “ In carrying demurrer to special plea back to the declaration and sustaining the same as to declaration.” The first error is not well assigned. After plaintiff had dismissed as to the insane person and left appellee as sole defendant, no reason is perceived why he might not be permitted to withdraw the plea of general issue and limit his defense by special plea. It is not suggested that plaintiff was harmed or prejudiced or surprised by this ruling of the court, and we have been furnished with no authority by counsel for appellant to sustain this first assignment of error.
In Sidway v. Marshall, 83 Ill. 438, in the opinion it is said: “ When any amendment is allowed that is at all calculated to take either party by surprise or that would affect the right or justice of the matter of the suit, or alter in any material respect the issues between the parties, the court may impose terms that it shall be permitted only upon notice to the party to be affected by it.” We infer from the language of this opinion that it would be proper for the trial court, in a case like this, to permit the defendant to withdraw the defense set up by the plea of general issue, which casts the burden of proof upon the plaintiff, and file a special plea, the burden of proving which the defendant assumes, and this without notice, unless the objection was made on that ground or the court could see that justice required such notice should be given. The plea of general issue having been withdrawn by leave properly given for that purpose, nothing remained to prevent carrying the demurrer to the special plea back to the declaration, and even if the plea was defective, yet if the declaration was also substantially defective, the court properly carried the demurrer over the plea back, and sustained it to the declaration, and gave judgment against the plaintiff, whose pleading was first defective in substance in accordance with the well established rule. And the second error is not well assigned.
Counsel for appellant insists, however, that the special plea was a plea in abatement; that the court, in carrying the demurrer back to the declaration, “ of course regarded the plea as bad,” and it being a plea in abatement the judgment should have been respondeat otoster. Counsel is mistaken in his premises and incorrect in his conclusion. The plea is in bar and not in abatement, and this is evidenced by its beginning and conclusion. It begins as a plea in bar and concludes as a plea in bar, and its character is determined by these tests, and not by its subject-matter, which is pleadable in abatement. Pitts’ Son’s Mfg. Co. v. Com. Nat. Bk., 121 Ill. 582. Is the declaration so defective in substance as to be obnoxious to a general demurrer ? This is the only question remaining to be decided. It is averred therein that Elliott W. Mudge, the plaintiff, sues for the use of the county of Madison, by the direction and authority of the boa/rd of supervisors of said county, and charges in the special count that appellee is now and was on December 12, 1890, and from that time hitherto has been the curator of the estate of Joseph Binkle, an insane person, and as such had, and has in his possession and control all the estate of his ward, amounting to $10,000. That as such curator he undertook and promised and became bound by the law, to provide for said Binkle all the necessaries of life, and to board, clothe and care for him out of said estate, and being so bound he afterward, on December 10, 1891, became a/nd was indebted to the county of Madison in the sum of $2,000 for the necessaries of life and board, clothes and care bestowed upon said Rinkle by the comity of Madison at the request of said Hezel, as such curator, and being so indebted, said defendant promised said county and the plaintiff, who was the duly authorized agent to act for the county, to fay to the said county said sum of $2,000 when requested by the plaintiff or said county, or by any of its duly authorized agents. It is then averred that Hezel, though often requested by the county and by the plaintiff, as its authorized agent, had not paid said sum of money, or any part thereof, but refuses so to do to the dmnage of the county of Madison in the sum of $2,000. Wherefore plaintiff brings suit for the use of the county of Madison as he is by it authorized and directed to do.
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Me. Justice G-reeíl
Suit was brought to the March term of the Circuit Court by appellant against Joseph Hinkle, an insane person, and Walter M. Hezel, his curator, a resident of the State of Missouri, and appointed by the Probate Court of the city of St. Louis. A guardian ad litem was appointed for Rinkle, who filed an answer March 28th, and on the same day the defendant Bezel filed a plea of the general issue. On March 30th the plaintiff dismissed the suit as to the defendant Rinkle, and thereupon the defendant Bezel, by leave of the court, withdrew the general issue and filed a special plea in bar. To this special plea the plaintiff filed a demurrer. After argument this demurrer was carried back and sustained to the plaintiff’s declaration. The plaintiff elected to stand by his declaration, and thereupon judgment was rendered against him for costs. The material question is, did the court err in carrying the demurrer back and sustaining it to plaintiff’s declaration ? That was the final action that resulted in the judgment complained of, and the successive stéps preceding it were the dismissal of the suit as to the insane defendant; withdrawing the plea of the general issue by leave of the court; filing of 'a special plea by defendant Bezel, and filing of general demurrer by plaintiff to said special plea. This special plea was as follows: And for further plea in this behalf, leave, etc., according, etc., the defendant Walter M. Bezel says that the plaintiff ought not to have or maintain the said action against him, because, .he says, that the said Walter M. Bezel, at the time of the commencement of said action was, and ever since then has been, and still is, a resident of the city of St. Louis and State of Missouri, and was not at the time of the commencement of this action, nor has he at any time since then been a resident of the State of Illinois; that at the time of the commencement of said action his co-defendant Joseph Rinkle, was and ever since then has been and still is, a resident of the county of Madison and State of Illinois; that the said Joseph Rinkle is an insane pauper and an inmate of the county hospital for the insane of said county, and has no property or estate in the State of Illinois, and that no conservator, either of the person or estate of said Joseph Rinkle, has ever been appointed in the State of Illinois; that the said Joseph Rinkle has an estate in the State of Missouri which accrued to him hy will of his deceased father, who died in the German Empire, in March, A. D. 1890, and who was a resident of said Empire at the time of his decease, but owned property, real and personal, in said State of Missouri, at the time of his death, and that this defendant is the curator of the estate of the said Joseph Hinkle, in the State of Missouri, by virtue of letters of curatorship issued to him December 12, A. D. 1890, by the Probate Court of the city of St. Louis, State of Missouri, and is not curator or conservator of the person of the said Joseph Hinkle, and this he is ready to verify, wherefore he prays judgment, etc.
By W. F. L. Hadley,
His attorney.
The errors assigned are in permitting “ defendant to withdraw the plea of general issue and file special plea after issue was joined.” “ In not sustaining the demurrer to special plea.” “ In carrying demurrer to special plea back to the declaration and sustaining the same as to declaration.” The first error is not well assigned. After plaintiff had dismissed as to the insane person and left appellee as sole defendant, no reason is perceived why he might not be permitted to withdraw the plea of general issue and limit his defense by special plea. It is not suggested that plaintiff was harmed or prejudiced or surprised by this ruling of the court, and we have been furnished with no authority by counsel for appellant to sustain this first assignment of error.
In Sidway v. Marshall, 83 Ill. 438, in the opinion it is said: “ When any amendment is allowed that is at all calculated to take either party by surprise or that would affect the right or justice of the matter of the suit, or alter in any material respect the issues between the parties, the court may impose terms that it shall be permitted only upon notice to the party to be affected by it.” We infer from the language of this opinion that it would be proper for the trial court, in a case like this, to permit the defendant to withdraw the defense set up by the plea of general issue, which casts the burden of proof upon the plaintiff, and file a special plea, the burden of proving which the defendant assumes, and this without notice, unless the objection was made on that ground or the court could see that justice required such notice should be given. The plea of general issue having been withdrawn by leave properly given for that purpose, nothing remained to prevent carrying the demurrer to the special plea back to the declaration, and even if the plea was defective, yet if the declaration was also substantially defective, the court properly carried the demurrer over the plea back, and sustained it to the declaration, and gave judgment against the plaintiff, whose pleading was first defective in substance in accordance with the well established rule. And the second error is not well assigned.
Counsel for appellant insists, however, that the special plea was a plea in abatement; that the court, in carrying the demurrer back to the declaration, “ of course regarded the plea as bad,” and it being a plea in abatement the judgment should have been respondeat otoster. Counsel is mistaken in his premises and incorrect in his conclusion. The plea is in bar and not in abatement, and this is evidenced by its beginning and conclusion. It begins as a plea in bar and concludes as a plea in bar, and its character is determined by these tests, and not by its subject-matter, which is pleadable in abatement. Pitts’ Son’s Mfg. Co. v. Com. Nat. Bk., 121 Ill. 582. Is the declaration so defective in substance as to be obnoxious to a general demurrer ? This is the only question remaining to be decided. It is averred therein that Elliott W. Mudge, the plaintiff, sues for the use of the county of Madison, by the direction and authority of the boa/rd of supervisors of said county, and charges in the special count that appellee is now and was on December 12, 1890, and from that time hitherto has been the curator of the estate of Joseph Binkle, an insane person, and as such had, and has in his possession and control all the estate of his ward, amounting to $10,000. That as such curator he undertook and promised and became bound by the law, to provide for said Binkle all the necessaries of life, and to board, clothe and care for him out of said estate, and being so bound he afterward, on December 10, 1891, became a/nd was indebted to the county of Madison in the sum of $2,000 for the necessaries of life and board, clothes and care bestowed upon said Rinkle by the comity of Madison at the request of said Hezel, as such curator, and being so indebted, said defendant promised said county and the plaintiff, who was the duly authorized agent to act for the county, to fay to the said county said sum of $2,000 when requested by the plaintiff or said county, or by any of its duly authorized agents. It is then averred that Hezel, though often requested by the county and by the plaintiff, as its authorized agent, had not paid said sum of money, or any part thereof, but refuses so to do to the dmnage of the county of Madison in the sum of $2,000. Wherefore plaintiff brings suit for the use of the county of Madison as he is by it authorized and directed to do.
In the common counts and in each of them, it is averred the indebtedness named therein is due from Hezel, as curator, to said county, and the promise averred is to pay the county. We have italicized portions of the declaration to indicate clearly the averments we deem conclusive touching its meaning and true construction. The averments disclose this state of the case: that a plaintiff .to whom the defendant is not indebted, and to whom the indebtedness named is not payable, and who is not damaged by a failure to pay the same, brings this suit to recover said indebtedness in his own name by the direction and authority of the board of supervisors of Madison County and not by reason of his having any legal right to recover the same. On the face of this declaration it affirmatively appears, even if an action would lie against appellee to recover the debt named therein, the legal right of action is in Madison County, and not in appellant. It is averred said county furnished the consideration for the indebtedness which was incurred and due to it; that the promise by defendant was to pay the same to the county, and by the breach of this contract the county was damaged, and it requires no citation of authorities to show it is an imperative rule that the party having a legal right of action is alone entitled to maintain a suit at law. We are not advised that any power has been granted a
board, of supervisors in this State to abrogate or change this rule by any order or direction it may give. If, then, it be admitted that all the averments in the declaration before mentioned are true, appellant had no right to recover, and the court below did not err in sustaining the demurrer and entering judgment against him for costs. We do not feel called upon to pass upon a question discussed in the printed argument of appellee, viz., may a suit be maintained against the curator, or conservator, without joining the non compos, and do not agree with counsel in the statement that this is the question raised by the demurrer. We hold that neither of the errors assigned are well assigned, and the rulings and judgment of the Circuit Court were right. The judgment is affirmed.
Judgment affirmed.