Parmelee v. Fischer

22 Ill. 212

• Court: Illinois Supreme Court
• Decided: April 15, 1859
• Status: Published

Opinion

Breese, J.

The objections taken by the appellants are not tenable. The instruction given on the part of the plaintiff was the law of the case. Woods v. Devin, 13 Ill. R. 746; Davis v. Michigan Southern and Northern Indiana Railroad Co., post.

As to the other objection that the pleas to the amended declaration were not answered, it is sufficient to say, that the amendment was for special damages in traveling and paying out money searching for the lost property. The character of the case was not at all changed by it, as set out in the original narr., and to that there was an issue of not guilty, under which all the matters set out in the special plea could be given in evidence, and we will presume the court permitted the defendant to give it in evidence, the bill of exceptions not showing he was denied that privilege. Warner v. Crane, 20 Ill. R. 151.

But if one of several pleas be not answered, and the parties go to trial without objection on the part of the defendant, the irregularity is considered as waived. Ross v. Reddick, 1 Scam. R. 74.

But a conclusive reply to all this is, that the appellant has not assigned it for error. The judgment is affirmed.

Judgment affirmed.