Harding v. Horton

Mb. Pbesiding Justice Windes delivered the opinion of the court. Appellant claims it was error, first, to strike from the files the pleas of non est factum and performance; second, to sustain the demurrer to the other two pleas; third, to proceed • with the assessment of damages without defaulting defendant; fourth, to refuse to admit in evidence the transcript of proceedings in the Appellate Court; fifth, to refuse the propositions of law asked by appellant; sixth, to include in the judgment costs shown by .the Circuit Court transcript offered in evidence. 1st. The two pleas, other than those of non est factum and performance, are pleas puis darrein continuance. They supersede all other pleas and defenses and admit the plaintiff’s cause of action to the same extent as if no other defense had been urged than that set forth in these "pleas. City of E. St. Louis v. Renshaw, 153 Ill. 496, and cases cited. There was therefore no error in striking from the files the other two pleas. 2d. It is claimed by counsel that the trial court sustained the demurrer to the pleas jpuis darrein continuance, or, as he calls them, his two special pleas, because they did not confess the right of plaintiff to recover costs up to the time they were filed. If the judgmen t of the court was right, it is immaterial what reason was given therefor, but we think this was a sufficient reason to sustain the special demurrer. Moreover, both pleas are bad because they fail to answer the whole of the declaration. One of the conditions of the bond was to prosecute the appeal with effect. This appellant failed to do, and neither of the pleas answers the declaration in that respect. Cook v. King, 7 Ill. App. 549; Vinyard v. Barnes, 124 Ill. 346. The first of the special pleas is also bad because it does not conclude with a verification. Stephen’s PI. 266, 289. The second special plea is bad, because in its' commencement and,conclusion it is a plea in bar, but the matters set forth in the plea are in abatement and not in bar of the action. Pitts’ Sons’ Mfg. Co. v. Com. Nat. Bk., 121 Ill. 586, and cases there cited. 3d. The defendant, having elected to stand by his pleas, was not in default, and there was no error in proceeding to assess the damages without entering the default of defendant. 4th. This ground of error is not available to appellant, because he had no pleas before the court, and the transcript offered was not pertinent nor material in the assessment of damages. 5th. All the propositions of law on behalf of defendant required either a finding and judgment for defendant, or a finding and judgment for defendant except as to the amount of plaintiff’s costs, and were therefore properly refused, the defendant having no pleading before the court answering the declaration, and the evidence as to damages justifying, as it does, the finding and judgment of the court. 6th. We see no error in allowing as damages the costs shown by the transcript from the Circuit Court, but if it were error, appellant can not avail of it on this record, there being no motion to set aside the assessment of damages, nor any objection by defendant to the court’s including in its assessment, the items of costs in question. Phoenix Ins. Co. v. Hedrick, 73 Ill. App. 601. The judgment is affirmed.