Schweyer v. Oberkoetter

Pleasants, P. J. Judgment below was for plaintiff, appellee, on verdict for $175. The record presents no question affecting the merits, but several technical points of practice only. Appellant, a liquor dealer residing in Chicago, delivered to Jeremiah Welch, of McEean County, his due bill, as follows: “Chicago, Sept. 26, 1885. “Due Jeremiah Welch $175, to be taken out in whisky or wine, at any time. John Sohweybb.” Welch assigned it to appellee with the following agreement indorsed: “In assigning this note to F. Oberkoetter, I hereby agree to be holden as, and assume the liability of, a surety or joint maker of the above note.” Appellee sued them as joint makers in assumpsit, upon a special count averring demand and refusal of the wine or whisky and the common counts, in the Circuit Court of McLean County. Process was personally served upon each of the defendants—Welch in McLean County and appellant in Cook. Both were defaulted for want of appearance and judgment thereon rendered against them. At the same term appellant afterward appeared by counsel and asked to have the • default and judgment as to him set aside and for leave to plead, which was granted upon condition that he plead to the merits only. Thereupon he filed four pleas: 1. General issue; 2. Hot jointly liable with Welch ; 3. Failure of consideration; 4. That Welch had no license to deal in intoxicating liquors. Demurrer was sustained to the second and fourth, and issues were joined on the first and third, which the jury found for the plaintiff. Defendant Schweyer entered his motion for a new trial. On plaintiff’s motion the default and judgment taken against Welch was set aside and the suit discontinued as to him. Thereupon the defendant Schweyer in person moved the court for leave to plead in abatement that he was not a resident of nor served with process in McLean County, which was refused. The motion for a new trial was then also overruled and judgment entered upon the verdict against him. He assigns for error that the court sustained the demurrers to his second and fourth pleas and denied his motion for leave to plead in abatement after verdict. We see no vice in the second plea which would expose it to a demurrer. But under the circumstances appellant had no right to file it. It was in violation of the terms on which his default was set aside, for, though not technically in abatement, it was dilatory and not to the merits. The more correct practice, therefore, would have been to strike it from the files, bnt since the effect was the same the action taken by the court to produce it, though in strictness error, will not reverse the judgment. It did no harm to appellant; besides, the joint liability was not insisted on. The judgment was taken against him alone. We think the fourth plea was had. The assignment of the note by Welch was in no proper sense a dealing by him in intoxicating liquors. He had the right to receive payment in them, and the right to transfer that right evidenced by a negotiable instrument to his creditor. Leave to plead in abatement asked after verdict upon issues nor pleas in bar, was rightly denied. Such a practice is wholly unknown, and the only ground on which the right was here claimed is that the discontinuance, as to Welch, after verdict made a new suit, in which there had been no verdict cn plea. We hold it was an amendment only, expressly provided for by section 24 of the Practice Act, and that its allowance was proper and of itself, as proof, conclusively established the identity of the action. Judgment affirmed.