Benson v. Arnold

Mr. Presiding Justice Harken delivered the opinion op the Court. The motion of defendants in error to dismiss the writ of error for the reason that the judgment entered in the court-below, and which is brought here for review, is not final, must be overruled. The language employed in the order makes the judgment a final one for the costs of the suit. We are led to believe from a view of the entire record that the presiding judge considered the action of the plaintiffs in standing by their demurrer to the plea of the statute of limitations as an end to the case; and so it was, practically, if no error was committed in overruling the demurrer. At all events, the language of the judgment makes it final, and such a one as may be appealed from. The action of the court in allowing the defendant to file the special plea of the statute of limitations after verdict was irregular. It raised an issue not tried by the jury. The defense which the statute furnishes may be waived by a defendant, and where he goes to trial solely upon a plea traversing the declaration he should be considered as having waived it. To allow a defendant to make his defenses by “ piecemeal,” and before different juries, does not fall within the contemplation of our liberal statutes on amendments. However, as the action of the court necessitated the granting of a new trial, and the granting of the new trial was the harm which resulted to the plaintiffs, that error alone would not be sufficient to reverse the judgment. The granting of a new trial can not properly be assigned for error. The court erred in overruling plaintiffs’ demurrer to the special plea of the statute of limitations. The additional count to which it was directed, was based upon the same letter that was set forth, haec verba, in the original count. It complained of the same injury and from the same cause. As against J. P. Arnold the two counts are identical except as to the date of the alleged libel, and that is stated under a videlioit. It should be remembered that the original count was amended by agreement by omitting the names of J. M. Benson as party plaintiff and J. W. Arnold as party defendant. The additional count, then, was but a mere restatement of the cause, of action, against J. P. Arnold. It introduced no new cause of i action. The main test as to whether an additional count is the statement of a new cause of action, or a restatement-of the one contained in the original count, is whether a recovery, if had on the original count, would bar the cause of action set up in the additional count. It is quite clear to our minds that a recovery on the original count as amended by the omission of the names of J. M. Benson and J. W. Arnold would be a complete bar to a recovery on. the additional count. Our views are sustained by the following Illinois authorities: Mitchell v. Milholland, 106 Ill. 175; North Chicago Rolling Mills Co. v. Monka, 107 Ill. 340; Blanchard v. Lake Shore & M. S. Ry. Co., 126 Ill. 416; Chicago & Alton R. R. Co. v. Henneberry, 153 Ill. 354; Swift & Co. v. Foster, 163 Ill. 50. Another error committed by the trial court was in rendering final judgment for costs when the issues raised by the general traverse were undisposed of. The judgment must be reversed and the cause remanded.