#### Raymond T. Mitchell, Appellee, v. A. V. Tyler, Appellant.

Gen. No. 44,413.

Opinion filed July 2, 1948.

Released for publication July 13, 1948.

Cohen & Weiss, of Chicago* for appellant; Marvin Patrick Cohen, of Chicago, of counsel.

Konstant J. Savickus and Henry W. Kenoe, both of Chicago, for appellees; Raphael Fine, of Chicago, of counsel.

Mr. Justice Kiley

delivered the opinion of the court.

This is a petition in the nature of a writ of audita querela, (Nelson v. Berry, 330 Ill. App. 244) seeking *118the permanent stay of a writ of restitution in a forcible entry and detainer suit. The court denied the relief prayed and the defendant has appealed.

Plaintiff made a motion to dismiss the appeal in this court and the motion was taken with the case. During the oral argument, plaintiff with leave of court, withdrew the motion.

Plaintiff neither answered defendant’s petition nor moyed to strike or dismiss it. The facts alleged are admitted. October 2, 1946, plaintiff had judgment against defendant in the forcible detainer action. Defendant appealed to this court. While the appeal was pending on August 29, 1947, plaintiff served a 60 day notice upon defendant of termination of “your tenancy.” .On November 19, 1947 this court affirmed the judgment for plaintiff in the forcible detainer case. On November 24, 1947, the petition herein was filed.

We think the essential question is whether the notice of August 29, 1947 waived the previous notice given before the forcible detainer action was begun.

In 120 A. L. R. page 570, it is said the authorities are “practically evenly” divided ón the question whether a second notice, to quit, waives a previous notice. Under this statement Dockrill v. Schenk, 37 Ill. App. 44, is cited as one of the cases holding that the second notice waives the first. Jones v. Ritter, et al., 206 Ill. App. 487 is cited under the same statement as one of the cases holding that the second notice does not constitute a waiver of the first. Both cases are cited by the parties to this proceeding. Defendant says the distinction between them which makes the Dockrill case applicable and the Jones case inapplicable is that in the former the two notices sought to terminate the tenancy on different dates and that in the latter both notices were for the same date. That is not the real distinction. Under the second notice in the Dockrill case plaintiff demanded the payment of accrued rent. In the Jones case the court said the *119lessee was in nowise misled by the second notice and that it was only precautionary to protect the lessor should the first notice be held insufficient.

It is our view that the defendant in the instant case could not have been misled by the August 1947 notice. The appeal was still pending in this court. Defendant must have known it was not plaintiff’s intention to abandon the appeal. Defendant should have known that the plaintiff was merely employing an expedient to save time should the appeal be in defendant’s favor. Ewing v. O’Malley, 82 S. W. (Mo.) 1087.

We see no merit to defendant’s contention that he did not receive a fair and impartial hearing because the plaintiff neither answered nor moved to strike. There was no reason to answer since the facts were admitted. The record does not show defendant objected to the court’s consideration of the legal question in the absence of a motion to strike. We presume, therefore, that the defendant was agreeable to the procedure followed. We .shall not, therefore, consider the contention.

For the reasons given the judgment is affirmed.

Judgment affirmed.

Burke, P. J., and Lews, J., concur.