Holloway v. Freeman

Breese, J. The motion to dismiss, was not based upon any defects or objectionable matter appearing upon the face of the papers, and was consequently, not regular or proper. The cross-motion to strike it from the files expressly refers to rules four and seven of the court, and makes therefore, those rules a part of the motion. What those rules are, we have no means of knowing, as they are not copied into the record. We will presume however, that the court below, under those rules, had sufficient reason for entertaining the cross-motion and striking the motion to dismiss from the files. That the County Court can establish rules of practice and proceedings to facilitate the business of the court, is undoubted, as they have powers concurrent with those of the Circuit Court, (Scates’ Comp. 1226,) and that Circuit Courts have such power is unquestioned. Without this concurrence, the County Court, we apprehend, being a court of record and of large jurisdiction, would possess an inherent power to establish rules of practice. Every court of record possesses such power. This court has said in general terms, that questions of the kind here presented, may be raised by plea in abatement or motion to dismiss, but that must be taken with this qualification; where it appears on the face of the papers, that the writ has improvidently issued, a motion to dismiss will be entertained, when it does not so appear but extrinsic matters have to be shown, that must be done by plea in abatement, so that an issue of fact may be made up and tried upon such matter. To this right the plaintiff is entitled, but from which he would be precluded, if the subject can be summarily disposed of on motion. When the defects appear on the papers, the court can determine them on inspection, and no issue is necessary—hence, the motion to dismiss in such cases will be proper. The cases of Kenney v. Greer, 13 Ill. R. 432; and Waterman v. Tuttle, 18 ib. 292, do not conflict with this view. As to pleas in abatement, it is to be observed that great strictness is required in framing them, as they are dilatory, not going to the merits of the action. They must be signed by counsel—they must specify truly the parties in the cause. 1 Tidd’s Pr. 639, 640. In this case the action is against Robert H. Holloway and Henry M. Bogges. This plea is signed Robert Holloway and H. M. Bogges, non constat, that they are Robert H. Holloway and Henry M. Bogges. Nor is the plea signed by counsel. Another objection to the plea was taken, and is given as one of the reasons why the court should strike it from the files ; it is, that the plea and the jurat attached to it, showed alterations and a filling up after it was sworn to. This is stated in the motion, but as this cannot be seen by this court, we are bound to presume that those reasons existed and were the basis of the action of the court below. We have a right to suppose this, as the court ruled out the plea on that, among other reasons filed. We do not think either, that this plea in abatement was filed “ in apt time.” In Kenney v. Greer, 13 Ill. R. 449, this court say, The statute gives the defendant a privilege which he can waive, and he must be regarded as having done so unless he makes his objection to the writ in apt time. Now this “ apt time” clearly was, at the earliest practicable moment. The plea being dilatory, this is the rule. The defendants did not do this, but interposing an insufficient motion, they waived their right to plead in abatement. As to the other point made by appellants, it is sufficient to say, that the oral testimony sought by the defendants from the witness, was in contradiction to the written exddence they themselves had introduced. The note sued on was for $401, payable in one year from the 24th April, 1857. The defendants introduced the xvitness Mileham, and proved by him two bonds for deeds executed by one F. O. Hankinson and Alfred Freeman, dated April 24, 1857, for the conveyance of certain lands by them to the defendants, one of which bonds specified the consideration to be two hundred dollars, for which three notes were executed, one for sixty-seven dollars, payable May 15th, 1857—one for sixty-eight dollars, payable in one year from date, and one for sixty-five dollars, payable in two years from date. The other bond specifies a consideration of four hundred dollars, payable by three notes, two for one hundred and thirty-three dollars, and one for one hundred and thirty-four dollars. The witness was then asked if the note sued on was the note or one of the notes given for the purchase of the land. The objection xvas thereupon made, and sustained, that at the then stage of the defendants’ own proof such evidence xvas not admissible. The notes and bonds introduced proved themselves, and there was no fraud or circumvention .pleaded in obtaining the execution of the notes sued on, or any mistake in the description of the notes described in the title bonds pretended. The defendants after having introduced evidence of this kind, showing that the notes given on the purchase of the land were drawn in favor of two persons and for different amounts and payable at a time different from the note sued on, the question they put to the witness was not pertinent to the case—it was irrelevant. They could not be admitted to disprove by parol all the written testimony they had themselves introduced. We discover no objection to any of the rulings of the court, and therefore, affirm the judgment. Judgment affirmed.