{ "id": 2568386, "name": "Edward Steelman et al., plaintiffs in error, v. Wiley Watson et al., defendants in error", "name_abbreviation": "Steelman v. Watson", "decision_date": "1848-12", "docket_number": "", "first_page": "249", "last_page": "251", "citations": [ { "type": "nominative", "cite": "5 Gilm. 249" }, { "type": "official", "cite": "10 Ill. 249" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "2 Gilm. 455", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2559388 ], "opinion_index": -1, "case_paths": [ "/ill/7/0455-01" ] }, { "cite": "12 Johns. 353", "category": "reporters:state", "reporter": "Johns.", "case_ids": [ 2139202 ], "opinion_index": -1, "case_paths": [ "/johns/12/0353-01" ] }, { "cite": "1 Wend. 284", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2003188 ], "opinion_index": -1, "case_paths": [ "/wend/1/0284-01" ] }, { "cite": "4 Blackf. 502", "category": "reporters:state", "reporter": "Blackf.", "case_ids": [ 1388470 ], "opinion_index": -1, "case_paths": [ "/blackf/4/0502-01" ] }, { "cite": "1 Scam. 73", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2480262 ], "opinion_index": -1, "case_paths": [ "/ill/2/0073-01" ] }, { "cite": "5 Ala. 493", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 8495261 ], "pin_cites": [ { "page": "498" } ], "opinion_index": -1, "case_paths": [ "/ala/5/0493-01" ] }, { "cite": "9 Mass. 503", "category": "reporters:state", "reporter": "Mass.", "opinion_index": -1 }, { "cite": "3 Scam. 92", "category": "reporters:state", "reporter": "Scam.", "opinion_index": -1 }, { "cite": "3 Ala. 347", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 8495941 ], "opinion_index": -1, "case_paths": [ "/ala/3/0347-01" ] }, { "cite": "2 Ala. 66", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 11255735 ], "opinion_index": -1, "case_paths": [ "/ala/2/0066-01" ] }, { "cite": "4 Scam. 84", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 6097455 ], "pin_cites": [ { "page": "88" } ], "opinion_index": -1, "case_paths": [ "/ill/5/0087-01" ] } ], "analysis": { "cardinality": 334, "char_count": 4589, "ocr_confidence": 0.679, "pagerank": { "raw": 1.7184114568032824e-07, "percentile": 0.7035454576695398 }, "sha256": "eb1d09e5f9a6a1c05c012a2edb1e2b46b53023a9acf5a83d32e41ee1a0123a0d", "simhash": "1:a9f31a56bb32d6c5", "word_count": 826 }, "last_updated": "2023-07-14T17:03:52.114614+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Edward Steelman et al., plaintiffs in error, v. Wiley Watson et al., defendants in error." ], "opinions": [ { "text": "The Opinion of the Court was delivered by\nCaton, J.\nWe should not regret it, if we could concur with the very ingenious argument of the counsel for the defendants in error, yet we are constrained to the conclusion, that it was error in the Circuit Court to render judgment by nil dicit against the defendant Steelman, when he had a demurrer in to the declaration unanswered and undisposed of in any way, and when he had taken no step in the cause subsequently, whereby he might have waived the demurrer, There is no doubt that neither the Court or the plaintiffs\u2019 counsel was aware of the demurrer being upon the liles; still the record shows it was there, and it was error to proceed to judgment without disposing of it.\nThe judgment is reversed with costs, and the cause re-\u00bb jqanded for further proceedings.\nJudgment reversed,", "type": "majority", "author": "Caton, J." } ], "attorneys": [ "T. Ford, and C. A. Warren Sr O. C. Skinner, for the plaintiffs in error.", "O. H. Browning Sr N. Bushnell, and .A. Williams S' C. B. Lawrence, fo.r the defendants in error." ], "corrections": "", "head_matter": "Edward Steelman et al., plaintiffs in error, v. Wiley Watson et al., defendants in error.\n\u00c9rror 'to .Adams.\nIt is erroneous to render judgrfient by nil dicit against a defendant wlio has filed' a demufrer to the declaration, when the same remains unanswered and not disposed of in any way, and he has not taken any subsequent step in the cause amounting to a waiver of the demurrer.\nAttachment, in the Adams Circuit Court, brought by the defendants in error against the plaintiffs in error.-\nSeveral motions were made in the Circuit Court and duly disposed- of. Steelman then filed with the Clerk a special-demurrer to the declaration. At the October term, 1848,\u2022 the Hon. Norman H. Purple presiding, when the cause was called for trial, one of the defendants\u2019 counsel stated in substance, that he believed they w.ould have nothing further to do with the case. A jury was then called .to assess the plaintiffs\u2019 damages in open Court. While the jury was being called, another of the defendants\u2019 counsel came into Court and without consultation with the former, proceeded to put questions to the witness or witnesses, both counsel being in Court. The jury assessed the plaintiffs\u2019 damages at $814\"20, upon which the Court rendered a judgment in the usual form in cases of attachment.\nT. Ford, and C. A. Warren Sr O. C. Skinner, for the plaintiffs in error.\nO. H. Browning Sr N. Bushnell, and .A. Williams S' C. B. Lawrence, fo.r the defendants in error.\nThe defendants waived .the demurrer by appearing subsequently and saying nothing in bar of the action. It was an express .waiver..\nGoing to trial without objection is a waiver of a discontinuance. Wells v. Mason, 4 Scam. 84, 88; Corley v. Shropshire, 2 Ala. 66.\nIf the defendant demurs and then pleads to the whole declaration, the plea waives the .demurrer. Gribbsley v. Nance, 3 Ala. 347; Snyder v. Gaither, 3 Scam. 92; Wilcox v. Woods, ib. 52; or demurs to a plea and then goes to trial without having the demurrer disposed of, the demurrer and plea are waived. Evans v. Gordon, 8 Porter, 142; Whiting v. Cochran, 9 Mass. 503.\nWhere no issue in fact appears of record, if .the parties appear and submit the same to a jury, the want of issue is waived. Navigation, &c. v. Schefferter, 5 Ala. 493, 498; Ross v. Reddick, 1 Scam. 73; Brazzle v. Usher, Bre. 14.\nOur statute places this case of judgment by nil dicit on the same footing as if the judgment had be.en rendered,under a verdict. If, in this case, the party had put in the general issue, or had gone to trial without any plea filed, the demurrer would have b.een waived, and he .could .not, .as we .haye seen, have assigned this for error. It is the fault of the party that the demurrer was not acted on, and his appearing at the calling the cause for trial, and saying nothing in bar of the action, was a virtual waiver of the demurrer, and was calculated to lull the other party into security, and he is thus not entitled to the interference of the Court. This Court has already treated similar cases as cured by the statute. Rev. Stat. 49, \u00a7 6; ib. 51, \u00a7 11; Brazzle v. Usher, Bre. 14; Peltier v. Britton, 4 Blackf. 502; Johnson v. Jackson, 1 Wend. 284; Evans v. Whitmore, 12 Johns. 353.\nBy appearing and pleading to the action, the defendant-waives all exceptions to the form or regularity of the writ, so that the defendant cannot then move to set aside proceedings for the non-compliance with the requisitions of the Attachment Law of South' Carolina. 3 U. S. Dig. 194, \u00a7 778; ib. 169, \u00a7 101.\nWhere a plea of abatement is overruled, a plea to the merits waives all exceptions to such ruling. 3 U. S. Dig. 165, \u00a7 780.\nAn inquisition of damages taken upon a default, is a verdict within the meaning of the law. Anderson v. Semple, 2 Gilm. 455." }, "file_name": "0249-01", "first_page_order": 265, "last_page_order": 267 }