Randolph v. Emerick

Treat, C. J. Randolph brought an action of assumpsit against Emerick. The defendant filed a demurrer to the declaration, which was sustained to the first count, and overruled as to the second count. The plaintiff then amended his declaration by the addition of two new counts; and a demurrer was sustained to one of them, and overruled as to the other. At the next term, a judgment by default was rendered against the defendant. It was set aside on his application; and he then entered a motion to dismiss the suit, because no bond for costs had been filed. The court sustained the motion, and dismissed the case. That decision is assigned for error. The statute requires a non-resident plaintiff to file a bond for costs, before the commencement of his action. The opinion was expressed in the case of the Trustees v. Walters, 12 111. 154, that a motion to dismiss a suit, for a failure by the plaintiff" to comply with this requisition of the statute, must be made before the time has passed for pleading in abatement, or it will not avail the defendant. The objection is of a dilatory character, in the nature of a plea in abatement, and if not insisted on at the proper time, is to be considered as waived. In this case, the motion came too late. A defendant cannot plead in abatement of an action, after he has demurred to the declaration. If his demurrer is overruled, he must plead to the merits. It was suggested on the argument, that the plaintiff should have taken a bill of exceptions to the decision of the cóurt dismissing the case. The record recites a motion made by the defendant, to dismiss the suit because no bond for costs had been filed by the plaintiff. This statement is sufficient to bring up the decision of the Circuit Court for revision. It affirmatively appears, from an entry on the record, that the court sustained a motion to dismiss, which the defendant had no right to interpose. The office of a bill of exceptions is to introduce matter into the record, which does not already appear there. Here, the character of the motion, and the circumstances under which it ■was made, clearly appear on the face of the record; and a bill of exceptions would not have brought any new matter into the record. If the record failed to show the nature of the motion, a bill of exceptions might be necessary to present the question, for otherwise this court would not be advised of the ground upon which the suit was dismissed. The judgment is reversed, and the cause remanded. Judgment reversed.