Collier v. Grey

Mr. Presiding Justice Ball delivered the opinion of the court. Sec. 18, Ch. 110, R. S., “ Practice ” provides, in effect, that unless the declaration is filed ten days defore the term of court at which the summons is made returnable, the defendant may have a continuance; “ and if no declaration shall be filed ten days before the second term of the court, the defendant shall be entitled to a judgment, as in case of a non-suit.” When the motion to dismiss this suit was allowed the defendant had not been served, nor had her appearance been entered except specially for the sole purpose of making the motion to dismiss the suit. The defendant, in making the motion to dismiss the suit, did not interpret the statute correctly. “ The object of the statute is to hasten proceedings and not to allow a plaintiff to keep a defendant attending on court from term to term, without apprising him of the nature of the complaint against him. If this be the object of the law, and this will not be doubted, then beyond' all question the process which is referred to is the one which is served on the defendant.” Herring v. Quimby, 31 Ill. 153, 156. It will thus be seen that for nearly forty years this has been the settled rule of construction. Wilkins v. English, 60 Ill. App. 345; S. C. on appeal, 163 Ill. 542; Emig v. Medley, 69 Ill. App. 199; Chicago City Ry. Co. v. Roach, 180 Ill. 174. The defendant in error did not file her plea in abatement in apt time, and therefore we can not consider it. Rule 17 provides: “ In all cases in this court where the defendant in error or appellee desires to plead and not join in error, he shall file his plea in the office of the clerk at least five days before the cause stands for trial,” etc. The briefs of defendant in error, under Rule 23, were due April 17,1902. When that day had come and gone the case stood for trial. The plea in abatement was not filed until April 22, 1902. Because of the limitation of time contained in Rule 17, the right to file such a plea did not then exist. The judgment of the Superior Court is reversed and the cause is remanded.