Diblee v. Davison

Walker, J. This was an action of assumpsit. The declaration contained two special and the common counts. The defendant interposed a plea in abatement to each writ that the defendant was not a resident of the county of Peoria, and was not served with process within that county, and “ that the contract, promises and moneys were not made specifically payable in the county of Peoria; and that at the commencement of. the suit, plaintiffs were not, nor since have been residents of Peoria county.” To these pleas defendants filed demurrers, which were answered, and the suit was abated. From that decision the plaintiff prosecutes this writ of error. With superior courts of general jurisdiction, the presumption is, that they are in the proper exercise of jurisdiction, until the contrary is shown. And it is a rule of pleading, that a plea to the jurisdiction of the court, must aver facts, showing the absence of jurisdiction, and must be certain in every particular. If the plea is uncertain in any particular, it will be bad on demurrer, or if the facts averred might be admitted to be true, and the court still, by reasonable intendment, have jurisdiction, the plea will be bad. In other words, the defendant must by his plea show that the court had no jurisdiction in any event, and it must appear by averment. But if several causes of action are embraced in the different counts of the declaration, a portion of which are within the jurisdiction of the court, and á portion are not, the court may proceed to try and determine those of which it has jurisdiction, and a plea in abatement, to be good, should only be to the cause of which the court has no jurisdiction. Does the language of this plea “ that the contract, promises and moneys were not made specifically payable in the county of Peoria,” exclude the presumption that any or some one of the promises declared upon,.may not have been so made payable? The reasonable construction of this language is, that all of these promises and moneys declared for, were not made specifically payable in the county of Peoria. And such an averment would imply that a portion or some one of them was specifically payable at that place, and if so, the court had jurisdiction to that extent. Had plaintiff taken issue on this plea, and on the trial one of the several causes of action declared upon, had proved not to have been specifically payable in that county, then this averment would have been sustained To have been sufficient, the averment should have denied that the contract, promises or moneys, or any or either of them, were so payable. The demurrer should therefore, have been sustained to these pleas. The court below having erred in overruling the demurrers to these pleas and abating the suit, that judgment must be reversed, and the cause remanded. Judgment reversed.