Mahony v. Mahony

Per Curiam : This is a writ of error to the Superior Court of Cook county. Errors were assigned upon the record, but there was no joinder in error. One of the defendants in error, Michael O’Connor, pleaded the Statute of Limitations,—that the writ of error was not sued out within five years after the entry of the decree. To this, plaintiffs in error replied that the writ of error was prosecuted within five years after the entry of the decree, namely, that the decree was entered on the 14th of June, A. D. 1884, and the writ of error was sued out on the 12th of June, A. D. 1889. To this the defendant in error Michael O’Connor demurred. No reason is shown why this demurrer should be sustained. The facts alleged in the replication are those necessary to raise an issue of fact upon the plea, and in our opinion they are sufficiently pleaded. The demurrer admits the allegations of the replication .to he true, and from the inspection we have given the record this admission is in accordance with the facts as disclosed by it. The effect of the plea is to confess the errors assigned, and ■the plea being negatived by the allegations of the replication, which are to be taken as true, the decree must, as to the defendant in error Michael O’Connor, he reversed. (Austin et al. v. Bainter, 40 Ill. 82; Thornton et al. v. Houtze et al. 91 id. 199.) The rights of the other defendants in error are dependent upon those of said O’Connor, who alone appears in this court. The decree of the court below dismissed complainants’ hill for want of equity. The reversal of that decree as to O’Connor necessarily works a reversal as to all. The decree is reversed and the cause remanded. Decree reversed.