Wilson v. Myrick

26 Ill. 34

Opinion

Caton, C. J.

In the case of Wear v. Jacksonville and Savannah Railroad Company, 24 Ill. 593, we held that when a plea of the general issue is put in to the whole of a declaration, a demurrer to a plea cannot be carried back to the declaration, upon the well settled ground that you cannot plead and demur to the same pleading at the same time. We have in this case been requested to reconsider that decision, and we have done so with attention, and in the light of the decisions to which we were referred, holding a different rule. We are now prepared to adhere to the rule laid down in that case, as being well supported by authority, and most consistent with the philosophy of pleading. If the declaration, be so defective that it will not sustain a judgment, that may be taken advantage of on a motion in arrest of judgment or on error.

The judgment is reversed, and the cause remanded.

Judgment reversed.