#### Davis Milk Machinery Company, Defendant in Error, v. A. D. Tappen, Plaintiff in Error.

Gen. No. 6,245.

(Not to be reported in full.)

Abstract of the Becision.

1. Appeal and ebrob, § 1303 * —when presumed that verdict sustained by evidence. Iu the absence of a bill of exceptions setting out the evidence, it must be conclusively presumed that a verdict is sustained by the evidence.

2. Pleading, § 466*—when absence of formal plea aired by verdict. If parties allow a suit to go to trial without the filing of a plea, or without formal issue or without formal pleadings, the error is cured by verdict.

3. Pleading, § 466*—when failure to file plea cured by appearance. Defects in pleadings arising from the failure to file a formal plea are cured „by the appearance of the parties.

4. Appeal and ebrob—when improper joinder of causes harmless error. The improper joinder of a count in assumpsit to a declaration in replevin is harmless error where no objection to such procedure was raised in the court below.

Error to the Circuit Court of Grundy county; the Hon. Samuel C. S tough, Judge, presiding. Heard in this court at the April term, 1916.

Affirmed.

Opinion filed August 10, 1916.

Statement of the Case.

Action in replevin by Davis Milk Machinery Company, plaintiff, against A. D. Tappen and W. L. Avery, defendants, to recover possession of certain personal property. From a judgment finding the ownership and possession of the property to be in plaintiff, defendant A. D. Tappen prosecutes a writ of error, the case having been dismissed as to the other defendant before trial.

Frank H. Hayes, for plaintiff in error.

Cornelius Reardon, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Niehaus

delivered the opinion of the court.