{ "id": 2689780, "name": "George H. Edbrooke v. William S. Cooper et al.", "name_abbreviation": "Edbrooke v. Cooper", "decision_date": "1875-09", "docket_number": "", "first_page": "582", "last_page": "584", "citations": [ { "type": "official", "cite": "79 Ill. 582" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "2 Scam. 186", "category": "reporters:state", "reporter": "Scam.", "opinion_index": 0 }, { "cite": "36 Ill. 521", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5214532 ], "opinion_index": 0, "case_paths": [ "/ill/36/0521-01" ] }, { "cite": "2 Scam. 222", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2478161 ], "opinion_index": 0, "case_paths": [ "/ill/3/0222-01" ] } ], "analysis": { "cardinality": 245, "char_count": 4080, "ocr_confidence": 0.582, "pagerank": { "raw": 1.7403302342894692e-07, "percentile": 0.7069307901734811 }, "sha256": "7d369a583fec4abc0d60de937d3d852be2178c9f33c938bed29233ae1dc4a460", "simhash": "1:13db854024d658f8", "word_count": 723 }, "last_updated": "2023-07-14T21:22:05.616340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "George H. Edbrooke v. William S. Cooper et al." ], "opinions": [ { "text": "Mr. Justice Scholfield\ndelivered the opinion of the Court:\nOn the 6th day of April, 1874, appellant filed his demurrer to the plaintiffs\u2019 declaration, and, three days afterwards, that is to say, on the 9th, he also filed 1ns plea of non assumpsit thereto. The record recites that, on the next day, the 10th, \u201c This day came the plaintiffs to this suit, by Carter, Becker & Dale, their attorneys, and the defendant, by S. M. Davis, his attorney, comes also, and this cause coming on now to be heard upon the defendant\u2019s demurrer to the plaintiffs\u2019 declaration filed in said cause, after argument of counsel, and due deliberation by the court,\u201d * * \u201cthe court, being fully advised in the premises, finds that said declaration is sufficient in law, and orders that said demurrer be and the same is hereby overruled.\u201d\nOn the 11th of the same month the record shows the plea of non assumpsit was, on motion of plaintiffs\u2019 attorneys, stricken from the files \u201cfor want of affidavit of merits, in pursuance of the statute in such case made and provided,\u201d and judgment was then entered against the defendant for want of a plea. Subsequently, the record was, by order of the court, amended by striking out the words, \u201cfor want of affidavit of merits, in pursuance of the statute in such case made aud provided.\u201d\nThe errors assigned question the regularity of the action of the court in sustaining the demurrer, and in subsequently striking the plea from the files.\nThere is no pretense that the declaration was, in fact, obnoxious to demurrer; but it is insisted the filing of the plea subsequently to the filing of the demurrer, was an abandonment of the demurrer, and withdrew the question presented bv it from the consideration of the court.\nIt has been held in Nye v. Wright, 2 Scam. 222, and Grier v. Gibson, 36 Ill. 521, that a defendant, by filing a plea to a declaration, waives an antecedent demurrer, but this can hardlv apply to the plaintiff, unless he joins issue on the plea.\nIt is an old and familiar rule of pleading, that a party is not allowed to both plead and demur to the same matter. Stephens on Pleading, (9th Am. Ed.) 278.\nThe record distinctly shows that the defendant did not abandon his demurrer, but that he appeared when it was called up by counsel, and it was overruled after argument of counsel. He is, therefore, estopped by the record from claiming his demurrer was abandoned.\nThe plea having been filed subsequently to the filing of the demurrer, and while the issue presented by it was still pending. the court was authorized to treat it as a nullity, and strike it from the files. Taylor v. Rhea, Minor, 414.\nEven if the plea had not been filed until after the demurrer was disposed of, being filed without the leave of the court, it might, in the discretion of the court, have been stricken from the files. Conradi et al. v. Evans et al. 2 Scam. 186.\nThe court certainly was not authorized to strike the plea from the files merely because it was not sworn to, since no affidavit was filed with the declaration; but it was properly stricken from the files because it was improperly filed while the issue on the demurrer was pending.\nNo objection is pointed out to the amendment of the record, and we are of opinion there is none.\nThe judgment is affirmed.\nJudgment affirmed.", "type": "majority", "author": "Mr. Justice Scholfield" } ], "attorneys": [ "Mr. S. M. Davis, for the appellant.", "Messrs. Carter, Becker & Dale, for the appellees." ], "corrections": "", "head_matter": "George H. Edbrooke v. William S. Cooper et al.\n1. Pleading\u2014-filing a plea pending a demurrer. A party is not allowed to plead and demur to the same matter.\n2. A defendant, by filing a plea to a declaration, waives an antecedent demurrer, but this rule does not apply to a plaintiff unless he joins issue on the plea.\n3. Where a defendant files a demurrer to a declaration, and subsequently files a plea, and, after the plea is filed, the demurrer is argued and overruled, it is proper to strike the plea from the files. The defendant, in such case, is estopped from claiming his demurrer was abandoned.\nAppeal from the Superior Court of Cook county: the Hon. Joseph E. Gary, Judge, presiding.\nMr. S. M. Davis, for the appellant.\nMessrs. Carter, Becker & Dale, for the appellees." }, "file_name": "0582-01", "first_page_order": 590, "last_page_order": 592 }