Devine v. Chicago City Railway Co.

Mr. Justice Carter delivered the opinion of the court: The defendant filed a general and special demurrer to the declaration. No issue was joined on this demurrer, and the declaration and demurrer were all the pleadings in the case. The case was called, both parties being represented by counsel, and a jury was empaneled without either party saying anything about the condition of the pleadings. The attention of the trial court does not seem to have been specifically called to this question at any time. The instructions asked do not mention it. The motion for new trial, although it sets out particularly twenty-six different reasons why a new trial should be granted, does not call attention to it, and while a formal motion for arrest of judgment appears to have been made, the record does not disclose that the court’s attention was then called to this point. Apparently it was first raised in the Appellate Court. Appellant argues that this is an error that appears on the face of the record, and hence can be raised in a court of review for the first time. Conceding, for the sake of the argument, that this is true, is the error of such nature as to require the reversal of this case? It must be admitted, as was stated by Mr. Justice Breese in Hopkins v. Woodward, 75 Ill. 62, that the cases in this State on this question are not in entire harmony. This court held that where, while a demurrer is pending, general and special pleas are filed to the count demurred to, the demurrer is thereby waived and no judgment need be pronounced on it. (Walden v. Gridley, 36 Ill. 523.) Substantially to the same effect are Davis v. Ransom, 26 Ill. 100, Edbrooke v. Cooper, 79 id. 582, Hull v. Johnston, 90 id. 604, Shreffler v. Nadelhoffer, 133 id. 536, and Chicago and Alton Railroad Co. v. Clausen, 173 id. 100. We have also held that if the parties appear and go to trial without a plea being put in, it is such an irregularity as will be held waived and cured by the verdict under the Statute of Amendments. (Brazzle v. Usher, Breese, 35.) To the same effect are Loomis v. Riley, 24 Ill. 307, Strohm v. Hayes, 70 id. 41, Barnett v. Graff, 52 id. 170, and First Nat. Bank v. Miller, 235 id. 135. It has been held it is error to render judgment by défault on demurrer to one of the counts in the declaration when one of the special pleas remained undisposed of. (Bradshaw v. McKinney, 4 Scam. 54; Steelman v. Watson, 5 Gilm. 249.) It has also been held that where a demurrer remains undecided as to a part of the counts of a declaration it is erroneous to try the case and render final judgment against the defendant on the other counts. (Bradshaw v. Hoblett, 4 Scam. 53; Weatherford v. Wilson, 2 id. 253.) This court in Nye v. Wright, 2 Scam. 222, held that where the record showed that a demurrer had been filed in the court below by the defendant and the plaintiff had joined in the demurrer, it was error to proceed with the cause and submit it to a jury upon its merits without first disposing of the demurrer. The doctrine of that case has been upheld in Moore v. Little, 11 Ill. 549, and Chapman v. Wright, 20 id. 120, and substantially to the same effect are Richeson v. Ryan, 15 id. 13, and Sammis v. Clark, 17 id. 398. In Lincoln v. Cook, 2 Scam. 61, it was held that where the record stated that the court sustained the demurrer to the first plea of the defendant, and that after replication filed to certain other pleas issues were joined by agreement of parties and the cause submitted to a jury, the parties must be considered as waiving all objections to the form of the pleadings on either side. In Parker v. Palmer, 22 Ill. 489, the conflict in the decisions here under discussion was noticed, and it was there said that the court did not intend to go one particle beyond the point to which the decided cases lead, and that where there is an unanswered demurrer on record and the party filing it goes to trial by consent it will not be cause for reversal of the judgment. Again, in Williams v. Baker, 67 Ill. 238, it was held that where a defendant who has demurred to a declaration consents to a trial of the case and it is tried on the merits, it amounts to a waiver of any benefit he might otherwise have had from the demurrer. Again, in Hopkins v. Woodward, supra, where the trial court proceeded to trial upon issues of fact formed without deciding a demurrer to a plea, there being no joinder in demurrer, this court, after stating that the decisions were conflicting, held that the irregularity was not such as to authorize a reversal, the defendant not having placed himself in a position to demand a decision as to the demurrer. In Belleville Nail Mill Co. v. Chiles, 78 Ill. 14, the exact situation as it appears here on the record was apparently presented, and this court held that where the parties go to trial by consent, with a demurrer to a count of the declaration undecided, it is no cause for reversal of the judgment. Counsel for the appellant argue that some of these last cases are different from this case, because a jury was there waived. This is not true of the last case, as there the trial was by jury. ' Counsel in this case, as in that case, consented to go to trial. Counsel for appellant, however, insist that the latest utterance of this court in Jocelyn v. White, 201 Ill. 16, upholds their contention, as Nye v. Wright was quoted with approval on this point; While it is true there are some expressions in that case, unnecessary for its decision, which tend to uphold appellant’s contention, it is also true that on page 22 of that case-this court said: “If, then, one doesi not waive his undisposed of demurrer by proceeding to trial without plea and without calling it up, it would seem that the court would be going very far to hold that he had waived his rights thereunder where such a demurrer was, in fact, overruled, merely because he failed to expressly give notice to the court, and to have the same entered of record, that he had elected to abide by such demurrer.” It is therefore very clear that the court in that case was of the opinion that this question could be waived by proceeding to trial without plea and without calling the demurrer up for disposition. While it may have been a technical error to proceed to trial before a jury on issues of fact without disposing of this demurrer, we think it is the better practice and in accord with the later decisions of this court to hold that such error was waived by appellant by proceeding to trial the same as if the case was at issue on the facts, and cannot be raised for the first time after verdict. Counsel for appellant further insist that the court committed reversible error in sustaining objections to questions asked by the appellant of witness Casey. That witness was asked if he did not testify differently before the coroner than on this trial, and answered: “I may have; I don’t remember.” The question was then asked if the matter was not fresher in his mind then than it now is. An objection to the question was sustained. A like question was also asked in another part óf his examination and the objection was sustained. The other points raised as to the questions on cross-examination of the witness were of a similar character. His testimony before the coroner on this point was' afterwards introduced for the purpose of impeaching him. This witness was cross-examined at great length on all phases of his testimony. We should be inclined to hold, from an examination of the record, that the trial court allowed too much, and not too little, latitude in such cross-examination. Certainly no reversible error was committed in refusing to allow him to answer the question suggested above, or as to any others to which our attention has been called. The appellant also insists that the court erred in refusing its nineteenth offered instruction. This instruction attempted to set up the law of self-defense as it applied to the conductor in ejecting the deceased from the car. Some of the witnesses testified that when deceased attempted to get back on the car he appeared to have his hand behind him. The argument of the appellant is that the conductor might well have believed that Keating was attempting to draw a revolver, although there is no proof that he had a revolver on his person. The instruction in question was so drawn that if it had been given the jury might have been led to believe that the conductor could use any -amount of force, even to the extent of causing death, if there were reasonable grounds for believing that there was danger of his receiving any bodily injury, however slight. This is not the law. Admitting, however, for the sake of the argument, that the instruction stated the law correctly, it was not error to refuse it, as two. other instructions were given for appellant which fairly covered the rule of law as to self-defense for the conductor which might be invoked by the appellant. The judgment of the Appellate Court will be affirmed. Judgment affirmed.