Miller v. McCormick Harvesting Machine Co.

Mr. Justice Windes, after making the foregoing statement, delivered the opinion of the court. Appellant, by pleading the plea puis da/rrien continuance, waived all his other pleas and confessed appellee’s cause of action, except as to the matter contested by the plea puis. In Angus v. Trust & Savings Bank, 170 Ill. 298, the court say: “ The additional plea filed January 27, 1896, being a plea puis darrien continuance, waived all previous pleas, aud confessed the matter in dispute between the parties. The general rule is that a plea puis darrien continuance supersedes all other pleas and defenses in the canse; and by operation of law the previous pleas are stricken from the record, and the cause of action is admitted to the same extent as if no other defense had been urged than that contained in this plea. Everything is confessed except the matter contested by the plea yuras. City of East St. Louis v. Renshaw, 153 Ill. 491, and cases there cited.” In Lincoln v. Thrall, 26 Ver. 304, the defendant pleaded a plea puis and at the same time the general issue. The court say: “We think a plea of this description is in legal effect a waiver of all previous pleas; the cause of action on the record stands admitted to the same extent as it would have been if no defense had been urged other than that set up in the plea puis darrien continuance; and the effect of such a plea is to strike from the record by operation of law all previous pleas, and everything stands confessed except the special matter contested by the plea.” It was therefore not error for the court not to dispose of the plea of performance filed by appellant with the plea puis, but to disregard it. See also Mount v. Choles, 120 Ill. 394; 1 Chitty’s Pl. (16th Am. Ed.), 690, and Ripley v. Leverenz, 83 Ill. App. 603, and cases there cited. It is therefore unnecessary to consider the sufficiency of any other of appellant’s pleas, as they are superseded by •the plea puis, and the cause of action admitted except as to the matter stated in this plea. We are inclined to the opinion that appellant, by taking leave to amend his plea puis after demurrer thereto was sustained by the court, waived any right to assign error upon the order of the court sustaining the demurrer thereto. Foltz v. Hardin, 139 Ill. 405; C. & A. R. R. Co. v. Clausen, 173 Ill. 100; C. & A. R. R. Co. v. Pearson, 71 Ill. App. 622. We have, however, thought proper to consider the sufficiency of this plea. In our opinion it is bad and does not present a defense, because it fails to allege that the judgment set up in the plea was between the same parties, or their privies, as in the case at bar, or that the former judgment was the result of a trial upon the merits, or that at the time the plea was filed the judgment was not appealed from, reversed or satisfied, and was in full force and effect. Valandingham v. Ryan, 17 Ill. 25; Leopold v. Chicago, 150 Ill. 573; Wright v. Griffey, 147 Ill. 496; 3 Chitty’s Pl. 1239; Brown v. Campbell, 110 Cal. 644; Harris v. Barnhart, 97 Cal. 546; Ellis v. Staples, 9 Humph. (Tenn.) 238. The appellant having confessed the appellee’s cause of action, with the exception of the matters set up in the plea puis, and that plea presenting no defense, the cross-motion to withdraw the plea of appellant made three days after appellee’s motion for final judgment was properly overruled. So far as appears from this record, there was no showing whatever that would entitle appellant to interpose any defense to the action after his plea puis had been held to be bad by the court. There was no reversible error in denying the cross-motion of appellant for leave to add a proper verification to the plea puié, for the reason that the plea being bad no verification thereof could aid the plea so that it would present a defense to the action. The appellant then being before the court confessing the plaintiff’s cause of action, it only remained for the court to determine the amount of damages and render judgment. Ryan v. B. & O. R. R. Co., 60 Ill. App. 612; Mount case, supra, and Ripley case, supra. The appellant claims that there was error in the allowance of interest to appellee and in including interest in the amount of damages assessed. Any error in this regard is waived by failing to make the point in appellant’s motion for hew trial. Besides, the evidence shows that there was a balance due from Laster, according to his own statements, December 21, 1892. It was proper to allow interest at five per cent upon this balance, which was done. We are of opinion that appellant’s motion in arrest of judgment was properly overruled for two reasons: First, because a demurrer to the amended declaration had been overruled and appellant thereafter pleaded to the declaration. A motion in arrest should not, therefore, have been entertained, when it-raised the same questions as were properly before the court on a consideration of a demurrer to the declaration, the defects not being substantial ones, and being such as could be aided by verdict. The questions raised on appellant’s motion in arrest, in substance, were as to the sufficiency of the declaration generally, which, of course, were the same questions raised by the demurrer to the declaration. Shreffler v. Nadelhoffer, 133 Ill. 536; C. & A. R. R. Co. v. Clausen, 173 Ill. 100. Second. The declaration was sufficient to sustain the judgment. We deem it unnecessary to consider in detail the several contentions advanced by appellant in this regard; The bond of appellant was written upon the reverse side of the contract between Laster and appellee, and by its express words, set out in the statement preceding this opinion, makes appellant a surety for the faithful performance of all his duties pertaining to his service of appellee from the 1st day of January, 1892, until the first day of January, 1893. Among these duties Laster was to remit to appellee, as directed, all money collected or received by him by virtue of his said service under said contract. The declaration alleges that after January 1, 1892, and prior to January 1, 1893, Laster received large sums of money belonging to appellee, which came to his hands by virtue of said agency, amounting to $10,000, which he converted and disposed of to his own use, and neglected and refused to pay over the same to appellee, although he was then and there requested to pay over the same to appellee. We regard these allegations as amply sufficient to sustain-the judgment. A further point is made that the evidence is insufficient to support the judgment. The point is not tenable. In substance it appears from the evidence that Laster made a statement to appellee of the amount of money remaining in his hands as its agent on December 21, 1892, which was $8,724.17. He also made another statement, or agent’s report, on January 31, 1893, which included the business of 1S92 not included in his previous report. This latter report showed a balance in his hands of $2,002.91 and was sufficient, in the absence of any other evidence, to justify the judgment. The appellee, however, by agreement with Laster, caused to be made an itemized statement of the balance due from Laster to appellee, which appeared to be $1,526.27. This latter amount, with interest at five per cent per annum from January 1, 1893, to November 1, 1898, was the amount at which, the damages were assessed, and the proper amount finder the evidence. There being no error in the record the judgment .is affirmed. ■ '