#### George W. Merker v. The Belleville Distillery Company, et al.

1. Exception—when not necessary to preserve question for review. It is not necessary for a party to except in order to preserve his right to call in question in the Appellate Court the act of the trial court in sustaining or overruling a demurrer and entering judgment. '

2. Declaration—effect of filing additional counts to. The effect of filing additional counts to a declaration is not to abandon the original declaration.

3. Judgment—when should not be rendered upon sustaining demurrer to declaration. It is error to render judgment in bar of an action upon sustaining a demurrer to a declaration where there remain on file and at issue other counts of the declaration.

Action on the case. Error to the Circuit Court of St. Clair County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the August term, 1904.

Reversed and remanded.

Opinion filed March 17, 1905.

Rehearing denied August 24, 1905.

Gustavos A. Koerneb and Victor K. Koerner, for plaintiff in error.

L. D. Turner, for defendants in error.

Mr.. Justice Creighton

delivered the opinion of the court.

This was an action in case, by plaintiff in error against defendants in error, in the Circuit Court of St. Clair County.

The record discloses that on December 29,1899, plaintiff in error filed in the St. Clair Circuit Court, his declaration consisting of two counts, against defendants in error. The gravamen in these counts is libel. To these counts, defendants in error, on January 11, 1900, filed two pleas: not guilty and Statute of Limitations; and on January 19th filed a plea of privileged communication; on the 23rd plaintiff replied double, to the plea of Statute of Limitations : that defendant Hartman was out of the State when the cause of action accrued, and that after the cause of action accrued he departed from the State; and demurred to the plea of privileged communication. On the same day defendant Hartman demurred to plaintiff’s replication to the plea of *327limitations, and on the 24th, defendant Belleville Distillery Company, entered a motion for judgment on the plea of limitations, because plaintiff had not replied to this plea as to it. During the remainder of that term on January 23, 1900, and at the succeeding April term on April 10, 1900, plaintiff filed a number of additional counts, all of which were demurred to. All these demurrers, and motions above mentioned remained undisposed of, and the case lay upon the docket unmoved, until October 3, 1903, when by leave of court plaintiff filed an additional count, denominated in the record, the seventh. The gravamen, in this character of count, is the malicious ruin and destruction of plaintiff’s business or occupation by acts done in pursuance of a conspiracy for that purpose. This count is set out in full in the abstract. To it defendants filed a demurrer, both general and special.

Counsel for plaintiff in error states, that the additional counts filed January 23 and April 10, 1900, are not set out here, “because they are practically included in the seventh count hereinafter set out, and because in the court below the argument was practically confined to the demurrer to this seventh count.” From this wre infer that it xvas the purpose of both counsel and court, to test and determine the sufficiency of all the additional counts upon the dernurrer to the seventh. That the hearing upon this demurrer included all the counts not pleaded to—all except the original, the libel counts.

The demurrer was argued, October 20, 1903, and the record discloses with respect thereto, as follows : “ And now, on this 20th day of October, A. D. 1903, come again the parties by their respective attorneys, and demurrer of defendants to plaintiff’s seventh additional count is presented and argued. And now on the 26th day of October, 1903, is by the court sustained, and thereupon the court renders judgment against the plaintiff in bar of the action and for costs. It is therefore considered and adjudged by the court, that the plaintiff be barred of his action and that the defendants have and recover of and from the *328plaintiff their costs in this behalf expended and have execution therefor.”

Counsel for plaintiffs in error insists, first, that the trial court erred in sustaining the demurrer; second, that the trial court erred in rendering judgment against plaintiff in bar of the action and for costs, on sustaining demurrer, when there were other counts not demurred to or included in any demurrer then pending and to which a plea had been interposed and issue thereon joined.

Counsel for defendants in error suggest that upon the sustaining of the demurrer and the rendering of the judgment complained of, no exception was taken. It is not necessary for a party to except in order to preserve his right to call in question in the Appellate Court the act of the trial court in sustaining or overruling a demurrer and entering judgment. City of Marshall v. C., C., C. & St. L. Ry. Co., 80 Ill. App. 531; Whalen v. Muma, 94 Ill. App. 488; Hamlin v. Reynolds, 22 Ill. 207.

Counsel for defendants in error also suggests and insists that the state of the record is such that the trial court was, and this court,is, warranted in assuming that plaintiff had abandoned his original counts, to which defendants had pleaded and issue was joined. His position is, that by subsequently filing other counts, plaintiff must be held to have thereby abandoned his former counts. This rule applies only to the filing of amendments, proper, as contradistinguished from the filing of additional counts. In the Illinois case relied upon, and from which counsel quotes at great length, viz., Kurtz v. Graybill, 192 Ill. 445, the question of abandonment of certain counts, turned wholly upon a stipulation filed in the case and not upon any state of the pleading, independent of the stipulation. It is not the rule in this State, that a party abandons his original declaration or former plea, merely by filing an additional count or further plea.

The count demurred to is entirely too long to be set out in full in an opinion, and it has not been abstracted. We must therefore content* ourselves with some discussion of *329without any attempt to disclose it. As stated above, “the gravamen in this character of counts, is the malicious ruin and destruction of plaintiff’s business or occupation by acts done in pursuance of a conspiracy for that purpose.” In Breitenberger v. Schmidt, 38 Ill. App. 168 (179), judge Pleasants writing for the Court put it in the following form : “ The gist of the action is not the conspiracy, but the damage done to thé plaintiff by the acts of the defendants.” The charge of mere conspiracy, is, in a civil suit, at most but inducement, and may be treated as surplusage. In Doremus v. Hennessy, 62 Ill. App. 392 (402), it is said: “ A civil action will not lie for a mere conspiracy. * * * It is now well established that in civil actions, the conspiracy is not the gravamen of the charge, but may be pleaded and proven in aggravation of the wrong.” In Bonney v. King, 201 Ill. 47 (50), our Supreme Court say: “ The conspiracy alleged to have been entered into is not the gist of the action. The right of recovery must be based upon some unlawful act, done in pursuance of the conspiracy.”

The vice in the count of the declaration demurred to and now before us, is that it does not sufficiently set out the wrongful act's relied upon as. a basis for recovery. Such averments as to facts as it does contain are too broad and general, not sufficiently specific. We are of opinion the demurrer was properly sustained.

When the demurrer was sustained, there remained two counts, which the court had on a former demurrer held good, to which defendants had pleaded “not guilty,” and upon which plea, issue had been joined. Upon this state of record it was error to render judgment against plaintiff in bar of his action. For this error the judgment of the Circuit Court must be reversed and the cause remanded.

Reversed and remanded.