Phoenix Insurance Co. of Hartford v. Frisch

Conger, J. This is an action of assumpsit. The declaration contained a special count upon an. insurance policy, and also the common counts. To this declaration appellant filed a general demurrer, which the court overruled, and thereupon appellant filed a plea of the general issue; but this was, hv leave of court, withdrawn by appellant; and refusing to plead further, a judgment by default was taken against it, evidence heard by the court, and appellee’s damages assessed at the sum of 81,067.81, upon which judgment was rendered against appellant The errors assigned upon the record are: 1st. The court erred in rendering judgment against appellant. 2d. The court erred in overruling the demurrer to the plaintiff’s declaration. Without determining the sufficiency of the sjiecial count, there can he no question that the common counts were good, and it is well settled that a general demurrer can not be sustained to a declaration containing one good count, however many bad ones there may be: Reece v. Smith, 94 Ill. 362, and authorities therein cited. The evidence heard by the qourt upon the assessment of damages is not preserved in the record, and wo must therefore presume it was sufficient to support the finding of the court. Motsinger v. Coleman, 16 Ill. 71. The judgment of the Circuit Court will be affirmed. Judgment affirmed.