{ "id": 5171875, "name": "Francis M. Bacon et al. v. Schepflin, Schultz & Co.", "name_abbreviation": "Bacon v. Schepflin, Schultz & Co.", "decision_date": "1896-03-03", "docket_number": "", "first_page": "17", "last_page": "19", "citations": [ { "type": "official", "cite": "63 Ill. App. 17" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "1 Scam. 319", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2481964 ], "opinion_index": -1, "case_paths": [ "/ill/2/0319-01" ] }, { "cite": "2 Gil. 69", "category": "reporters:state", "reporter": "Gilmer", "opinion_index": -1 }, { "cite": "17 Ill. 34", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "16 Ill. 306", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2590881 ], "opinion_index": -1, "case_paths": [ "/ill/16/0306-01" ] }, { "cite": "58 Ill. 96", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5237420 ], "opinion_index": -1, "case_paths": [ "/ill/58/0096-01" ] }, { "cite": "41 Ill. 118", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "25 Ill. 284", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 443591 ], "opinion_index": -1, "case_paths": [ "/ill/25/0284-01" ] }, { "cite": "121 Ill. 586", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "19 N. Y. 271", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 497690 ], "opinion_index": -1, "case_paths": [ "/ny/19/0271-01" ] }, { "cite": "68 Wis. 428", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8705595 ], "opinion_index": -1, "case_paths": [ "/wis/68/0428-01" ] }, { "cite": "3 Ill. App. 184", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": -1 }, { "cite": "22 Ill. 197", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5281027 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill/22/0197-01" ] }, { "cite": "121 Ill. 582", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5386199 ], "opinion_index": 0, "case_paths": [ "/ill/121/0582-01" ] } ], "analysis": { "cardinality": 324, "char_count": 4759, "ocr_confidence": 0.505, "pagerank": { "raw": 6.950781921278023e-08, "percentile": 0.4213189649280711 }, "sha256": "66d8511b2a4bd61ecfcde899c1b171c4767f704f4e857e82a030b4da02ff8e1a", "simhash": "1:8d725fff3fc02e5c", "word_count": 820 }, "last_updated": "2023-07-14T18:54:49.987215+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Francis M. Bacon et al. v. Schepflin, Schultz & Co." ], "opinions": [ { "text": "Mr. Presiding Justice Gary\ndelivered the opinion of the Court.\nThe appellants commenced a suit in attachment against the appellees by their partnership name, as the statute permits.\nTo that a plea was filed as follows:\n\u201c State of Illinois, ) County of Cook, ss. \u2018 In the Superior Court of Cook County, April term, A. D. 1895. .\nFrancis M. Bacon, Francis M. Bacon, Jr., and James F. Bacon, plaintiffs, Christian Schepflin and Peter Schultz, Attachment, co-partners as Schepflin, Schultz & Co., defendants.\nAnd the said Christian Schepflin and Peter Schultz, defendants, by Smith, Shedd & Underwood, their attorneys, come and defend, etc., and pray judgment of said writ, because they say that at the time of suing out the writ of attachment herein, and of the beginning of said writ, there was no sum of money due or payable from said defendants, or either of them, to said plaintiffs, or either of them, on account of the several supposed promises in said declaration of said plaintiffs mentioned, or for or on account of any other matter or thing whatsoever, and that said several supposed sums of money and each of them, in said declaration alleged to have been promised by said defendants to said plaintiffs, will become due and payable from said defendants to said plaintiffs on the 6th day of June, 1895, and not prior thereto, and this they, the said Christian Schepflin and Peter Schultz, are ready to verify; wherefore they pray judgment of said writ and that the same may be quashed, etc.\nSmith, Shedd & Underwood, Attorneys for Defendants.\u201d\nThe appellants demurred, assigning as one of the causes: \u201c Said plea is not a plea by the defendants in said cause.\u201d\nThat the premature bringingof an action maybe pleaded in abatement is not questioned. Pitts Sons\u2019 Mfg. Co. v. Commercial Nat. Bk., 121 Ill. 582.\nNeither by briefs of counsel nor our own research, do we find that the text book writers had any knowledge of attachments against defendants by other than their individual names.\nWe must determine from the purpose of pleadings, and from analogy, whether this plea is good.\nConsidering the quoted cause assigned, the case most nearly resembles that of a defendant sued by a wrong name in an ordinary action, in which case, if he pleads, whether in abatement or in bar, he must not commence his plea with an assumption that he has been before mentioned in the case. 1 Ch. Pl., Ed. 1828, 468.\nIf he does, his plea is bad on demurrer.\nNow that is what has been done here.\nThe plea should have commenced: \u201c And Christian Schepflin and Peter Schultz, against whom the said Francis M. Bacon, Francis M. Bacon, Jr., and James F. Bacon have sued out a writ of attachment by the name of Schepflin, Schultz & Co.\u201d\nThe demurrer should have been sustained with judgment that the defendants answer over. 1 Ch. PL, 405, same Ed.\nThe judgment is reversed and the cause remanded.", "type": "majority", "author": "Mr. Presiding Justice Gary" } ], "attorneys": [ "Moses, Pam & Kennedy, attorneys for appellants.", "Smith, Shedd & Underwood, attorneys for appellees." ], "corrections": "", "head_matter": "First District\u2014\nOctober Term, 1895.\nFrancis M. Bacon et al. v. Schepflin, Schultz & Co.\n1. Pleading\u2014Where the Defendant is Sued by a Wrong Name.\u2014 Where a defendant is sued by a wrong name in an ordinary action, if he pleads, whether in abatement or in bar, he must not commence his plea with an assumption that he has been before mentioned in the case. If he does so, his plea will be bad on demurrer.\n2. Same\u2014Premature Bringing of an Action.\u2014The premature bringing of an action may be pleaded in abatement.\nAttachment.\u2014Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in this court at the October term, 1895.\nReversed and remanded.\nOpinion filed March 3, 1896.\nMoses, Pam & Kennedy, attorneys for appellants.\nPleas in abatement are treated strictly.\nThe improper entitling of the plea in abatement is cause for demurrer. Holloway v. Freeman, 22 Ill. 197; Gould on Pleading, 432, Sec. 12; 1 Chitty, Pleading, 465-6.\nSmith, Shedd & Underwood, attorneys for appellees.\nThe premature bringing of a suit is ground for a plea in abatement. Collins v. Montemy, 3 Ill. App. 184; 1 Chitty Pleading (16th Am. Ed.), 469; 1 Encyc. Pleading and Practice, 22; Collette v. Weed, 68 Wis. 428; Smith v. Holmes, 19 N. Y. 271; Pitts v. Bank, 121 Ill. 586.\nPleas in abatement are strictly, but not prohibitively, construed. Holloway v. Freeman, 22 Ill. 197; Fowler v. Arnold, 25 Ill. 284; Cook v. Yarwood, 41 Ill. 118.\nAfter the overruling of plaintiff\u2019s demurrer to a plea in abatement, the court can not permit plaintiff to reply to the plea, but judgment that the writ be quashed must be given. Spaulding v. Lowe, 58 Ill. 96; Eddy v. Brady, 16 Ill. 306; Ridgeway v. Smith, 17 Ill. 34; 1 Chitty\u2019s Pleading, star page 483; Gould\u2019s Pleading, p. 277, Sec. 159; Stephen\u2019s Pleading, 107; Motherell v. Beaver, 2 Gil. 69; McKinstry v. Pennoyer, 1 Scam. 319." }, "file_name": "0017-01", "first_page_order": 13, "last_page_order": 15 }