{
  "id": 2506644,
  "name": "Jerseyville Shoe Manufacturing Company v. O. H. Bell",
  "name_abbreviation": "Jerseyville Shoe Manufacturing Co. v. Bell",
  "decision_date": "1906-03-20",
  "docket_number": "",
  "first_page": "496",
  "last_page": "499",
  "citations": [
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      "cite": "125 Ill. App. 496"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
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    "name_long": "Illinois",
    "name": "Ill."
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    {
      "cite": "72 Ill., 419",
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  "last_updated": "2023-07-14T16:50:11.384860+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Jerseyville Shoe Manufacturing Company v. O. H. Bell."
    ],
    "opinions": [
      {
        "text": "Hr. Justice Ramsay\ndelivered the opinion of the court.\nO. H. Bell, the appellee, brought suit in the Circuit Court of Jersey county to recover a balance alleged to be due from appellant to him for labor; he recovered a judgment and the shoe company appealed.\n\u25a0 While said suit was pending and on the 25th day of September, 1905, appellant filed its plea in abatement setting up that prior to the commencement of^ suit in the Circuit Court and on the 9th day of June, 1905, Bell had instituted a suit before a justice of the peace for the identical claim sued for and that said former suit was still pending and undetermined.\nTo this plea Bell filed two replications. The first of said replications set np that after the filing of the plea of abatement and on the 26th day of September, 1905, said former suit was dismissed out of court by plaintiff. The second replication set up that there was not any record of the said supposed former suit remaining in manner and form as in said plea of abatement alleged.\nAppellant filed a demurrer, to each of said two replications which was overruled. Thereupon appellant elected to stand by its demurrer.\nAfterward, upon the assessment of damages, appellant sought to show that appellee\u2019s work was defectively done and not up to the standard required by appellant, to the introduction of which an objection was made and sustained on the ground that appellant was in default for want of plea, and appellant excepted.\nAppellant first contends that the court erred' in overruling its demurrer to the first and second replications; that the plea in abatement was good when filed and that appellee could not, after the filing of the plea, dismiss his former suit and then set that fact up by replication in answer to the plea. This subject is one upon which the authorities are not altogether in accord and while the author and compiler of the first edition of the American and English Encyclopedia of Law, vol. 8, page 551, supports the contention of appellant, yet we do not think that such statement there made is in accord with the more modern holding .of the courts. In the Encyclopedia of Pleading and Practice, a somewhat more recent work by the same authority, vol. 1, on page 755, the writer says that \u201cThe prevailing rule now is that the discontinuance or dismissal of the first suit after the commencement of the second may be set up in reply to the plea and thus defeat an abatement,\u201d and in a note on page 756 says: \u201cAccording to the later cases, the objection of a former suit pending is removed by its dismissal or discontinuance, even after plea in abatement in the second suit,\u201d and cites many authorities in support of the more modem rule. There was no error in the action of the court in overruling the demurrer to said replications.\nIt is next said by appellant that the court erred in not allowing it to show after it was in default for want of plea, upon the hearing to assess appellee\u2019s damage, that Bell had not done his work properly, so that it would pass inspection and by that means reduce the damages of appellee.\nAppellant alleges that the action of the court in that regard was error upon two grounds: first, that a defendant in default can be heard upon assessment of damages upon an inquiry, and, second, that a defendant in default may recoup.\nUpon the first of these two propositions apjiellant lays considerable stress upon the case of Cairo and St. L. R. R. Co. v. Holbrook, 72 Ill., 419, where it was said that \u201cThe defendant\u2019s rights were not wholly foreclosed by the default. While the defendant admits every material allegation of the declaration it does not admit the amount of damages.\u201d This language, however, is not broad enough to admit of a defendant in default giving evidence of a substantive defense.\nThe defense offered upon the inquiry in the case at bar was an affirmative and substantive one. It was in effect an effort to show that Bell\u2019s work was improperly done and that by reason thereof he could not recover for his labor; this, if allowed, would have tended to show that Bell had no cause of action, a position not permitted by the authorities where a defendant is in default for want of plea. The case cited (C. & St. L. R. R. Co. v. Holbrook) holds that upon a writ of inquiry the defendant cannot introduce evidence tending to show that plaintiff had no cause of action.\nThe position that a defendant in default for want of plea cannot give evidence tending to show that plaintiff had no cause of action, is fully sustained by the authorities. Foreman Shoe Co. v. Lewis & Co., 191 Ill., 155; Cook v. Skelton, 20 Ill., 107; Herrington v. Stevens, 26 Ill., 298. In the case last cited the court say that: \u201cOn an inquest of damages, the right of the defendant does not extend so far as to allow him to introduce a substantive defense.\u201d\nWe cannot say just how much stress appellant lays upon the doctrine of recoupment, for while in its first brief and argument filed herein, on page 21, it says: \u201cIn mitigation of damages after default the defendant may recoup for the amount of defective work charged for by appellee that would not pass inspection and it was error to reject the evidence of appellant upon this proposition,\u201d in its reply brief on page 4 it says: \u201cThere is no question of recoupment involved in the case at bar.\u201d We h\u00f3ld, however, that to warrant the admission of evidence in recoupment there must be at least a plea of the general issue. Our courts have held uniformly that a defendant may recoup under that plea without notice; but we know of no case where such action has been had without either plea or notice.\nWe have no power to allow any additional attorney\u2019s fees for services in this court and appellee\u2019s claim upon that basis will be denied.\nThe judgment of the Circuit Court is affirmed.\nAffirmed.",
        "type": "majority",
        "author": "Hr. Justice Ramsay"
      }
    ],
    "attorneys": [
      "Hamilton & Hamilton, for appellant.",
      "Thomas F. Ferns, for appellee."
    ],
    "corrections": "",
    "head_matter": "Jerseyville Shoe Manufacturing Company v. O. H. Bell.\n1. Former suit pending\u2014how objection of, may be removed. The objection of former suit pending may be removed, even after a plea relying thereon filed in the second suit, by dismissal of such former suit.\n2. Assessment of damages\u2014what evidence defaulted party cannot introduce. A party in default cannot introduce upon the assessment of damages evidence which tends to establish a substantial defense to the plaintiff\u2019s action.\nAction of assumpsit. Appeal from the Circuit Court of Jersey County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1905.\nAffirmed.\nOpinion filed March 20, 1906.\nHamilton & Hamilton, for appellant.\nThomas F. Ferns, for appellee."
  },
  "file_name": "0496-01",
  "first_page_order": 540,
  "last_page_order": 543
}