Town of South Ottawa v. Foster

Breese, J. The demurrer filed in this cause was properly overruled, for the declaration stated a good cause of action, and in plain and perspicuous language. The court, on giving judgment against the demurrer, if the party pleading it did not ask to withdraw it, and plead to issue, could, as it did, give judgment against the defendant for the damages, and cause a jury to be empanneled to assess those damages. What consequences flow from this ? By not pleading further, the demurrer being to the merits and in bar, admitted the cause of action as stated in the declaration—it admitted all the facts therein set out, and they could not be controverted on the inquest. The right of a defendant on an inquest of damages does not extend so far as to allow him to introduce a substantive defense. He may overthrow, by a cross-examination, what has been testified to by the witness on his direct examination, but he cannot, by the witnesses called by the plaintiff, establish a substantive defense. He may also introduce witnesses to reduce the amount of the recovery, and when taken in open court, ask for instructions to the jury, and this is the extent and meaning of the rule laid down in the Chicago and Rock Island Railroad Co. v. Ward, 16 Ill. R. 522. Under this view, the testimony of the witness who was asked if, in his opinion, it was prudent for any person, at that time, after dark, to go down that hill with a loaded wagon without having both hind wheels locked, was properly rejected, as it introduced a substantive defense; and so of the testimony of the other witness—that pointed to the same object. If there was any defense, it should have been raised by plea. The instructions given on behalf of plaintiff were correct. That asked by the defendant was properly refused, because the plaintiff’s negligence was not a matter of inquiry on the inquest. The points presented' by the demurrrer are disposed of by reference to the 22nd, 23rd and 24th sections of the law providing for township organization. There the duty is imposed, and means provided to discharge the duty. There being no such errors as are assigned, the judgment of the court below is affirmed. Judgment affirmed.