Phoenix Insurance v. Hedrick

Mr. Justice Bigelow delivered the opinion of the Court. The first assignment of error questions the ruling of the court in overruling the demurrer. In the view we take of the pleadings it is unnecessary to pass upon that question, at least so far as the special demurrer is concerned; nevertheless a brief notice of one or more of the grounds of special demurrer may not be unprofitable. Take the first ground: “Said replications are all special and conclude with a verification.” This is only an argumentative way of saying they should conclude' to the country. Take the second ground: “Said replications do not traverse all the facts alleged in the plea.” This falls far short of stating what facts alleged in the plea are not traversed. The other grounds are of similar character. A special demurrer, like a plea in abatement, must be certain to a particular intent. 1 Chitty’s Pleadings (8 Am. Ed. from 6 Bond. Ed.), p. 666; Cover v. Armstrong, 66 Ill. 267; Holmes v. C. & A. R. R. Co., 94 Ill. 439; Iron Clad Dryer Co. v. Chicago Trust and Savings Bank, 50 Ill. App. 461. If it be conceded that the court erred in overruling the general demurrer to the replications, no harm was done appellant if its plea in abatement was bad, since in that case the demurrer should have been carried back and sustained to the plea. P. & Q. R. R. Co. v. Neill, 16 Ill. 270. A demurrer on a record presenting a plea in abatement searches the record back to such plea only, since the plea does not profess to answer the declaration, but goes only to the writ. Ryan v. May, 14 Ill. 50. Was appellant’s plea in abatement good? Such a plea ought to be certain to every intent in particular. Parsons v. Case, 45 111. 296. The plea, while admitting that some kind of proofs of loss were sent to appellant, does not state their contents, but avers that the proofs did not state and set out the title to the property. This allegation is equally consistent with each of the two theories, viz., either that the proofs were absolutely silent upon the subject of the title to the property or that, though attempting to set out title, they were so defective as not to be a compliance at all with the substantial requirements of the policy in that regard, and so the pleader says the title was not stated. If the latter is meant by the pleader, he is pleading a conclusion of law as applied to the proofs furnished by appellee. To have made his plea good he should have stated precisely and particularly what the proofs showed appellee to have stated in that regard, especially since appellant admits by his plea that proofs of some kind were furnished. To say that a certain document does not state such and such facts may be argumentative, but lacks that precision which is required in saying what facts the document does state. That this plea is an attempt to plead a conclusion of law into the record, is further evidenced by the fact that it avers that appellant wrote appellee that the proofs failed to show that he was sole and unconditional owner in fee of the property, a requirement not demanded by the policy as to .the proofs. He was only required to state his title, whatever it was, and that, we are of opinion, could be done by any equivalent terms to fulfill the title he represented himself, in the policy, to be possessed of. Technical nicety was not contracted for. We are of the opinion that the plea in abatement was bad and that the demurrer should have been carried back to the plea and sustained to it, but because that ' was not formally done is of no consequence; at least appellant has no reason to complain of it. The admission of improper evidence on behalf of appellee, as well as the rendering of the judgment in his favor, are assigned for error. From the view we take of the matter, the judgment by default was properly rendered, since appellant refused to plead to the declaration, and the record is not in condition to pass upon the errors assigned. The entire cause of action, as stated in the declaration, was admitted by the default, except the amount of damages. Section 61 of the Practice Act, allowing an exception to the final judgment, to be taken on trials by the court without a jury, and by consent of the parties, has, in our opinion, no application to a case like this. The proceeding to assess the damages was not with appellant’s consent, within the meaning of this section. Assessment of damages is in no sense a trial. It is more in the nature of a special proceeding. Under the early common law of this State (and we presume it may still be the law) the sheriff was authorized to execute the writ of inquiry anywhere in the county, and the proceeding need not be in a court at all. Vanlandingham v. Fellows, 1 Scam. 233. Notwithstanding the section of the statute above referred to, it is still necessary to make a motion to set aside the assessment, and if it is disallowed, to take an exception to the ruling of the court. Beam v. Laycock, 3 Bradw. 44, and cases there cited. No exception was in fact taken to the introduction of evidence on the assessment of damages. We have examined the evidence and find it not only relevant, but fully sufficient to support the judgment. As to the evidence introduced by appellee to prove title, that, also, we think, is sufficient to fulfill the requirements of the policy, but whether it is or not is immaterial, as the default admitted all the facts pleaded in the declaration, and its sufficiency has not been-challenged. Finding no error in the record requiring a reversal of the judgment, it is affirmed.