#### Elevator Supply & Repair Company, Appellee v. Ella C. Case, Appellant.

Gen. No. 18,945.

(Not to be reported in full.)

Appeal from the County Court of Cook county; the Hon. W. F. Slater, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1912.

Affirmed.

Opinion filed March 5, 1914.

Statement of the Case.

Scire facias or an appeal bond from justice court executed by Ella C. Case on the appeal of Biddle-Murray Manufacturing Company, a corporation, from a judgment against it in an action wherein the Elevator Supply & Repair Company was plaintiff and said Manufacturing Company defendant, which judgment was affirmed in 156 Ill. App. 461. From a judgment for plaintiff on the striking of defendant’s pleas, defendant appeals.

*251Abstract of the Decision.

1. Justices of the peace, § 295 * —when plea in abatement in action on appeal bond bad. In scire facias on an appeal bond from justice court a plea in abatement to the jurisdiction of the court averring that defendant resided and was served in a county other than that in which the writ issued is bad.

2. Scibe facias, § 1 * —nature. A writ of scire facias is considered both as a process and as a declaration.

3. Justices of the peace, § 295 * —when nil debet improper. In scire facias on an appeal bond from justice court a plea of nil debet is bad.

4. Justices of the peace, § 295 * —when non est factum bad. In scire facias on an appeal bond from justice court pleas of non est factum are bad, even though denying the execution of the bond by defendant, for the reason that the bond on being filed in the County Court became part of the record and indisputable.

5. Justices of the peace, § 295 * —when pleas properly stricken in action on appeal bond. In scire facias on an appeal bond from justice court, where defendant as surety pleaded nil debet and non est factum, averring that the bond in suit was not the deed of the principal defendant and that it was not executed by an authorized officer of such principal defendant, there being no allegation of the satisfaction or discharge of the judgment against the principal defendant, it was held that the pleas were properly stricken from the files.

6. Appeal and error, § 1306 * —when court presumed justified in striking pleas. On appeal from judgment in scire facias on an appeal bond in justice court, in the absence of a bill of exceptions it will be presumed that the action of the court in striking defendant’s pleas from the files and entering judgment was fully warranted.

Alfred E. Case, for appellant.

James J. Leahy, for appellee; Albert O. Olson, of counsel.

*

Seo Illinois Notes Digest, Yols. XI to XV, same topic and section number.

Mr. Justice G-ridley

delivered the opinion of the court.