Byerly v. Wilson

Me. Justice Baume delivered the opinion of the court. This is an action in replevin by appellee against appellant, in which, upon the trial, there was a verdict and judgment against appellant. The declaration was filed October 1, 1904, and on January 28,1905, appellant filed three pleas, non eepit, non deúnet, and property in himself. The cause came on for trial February 1, 1905, and after the jury had been impaneled, counsel for .appellant withdrew the plea of property in appellant and moved the court for leave to file an additional special plea, which motion was denied. The action of the court in denying this motion is the only assignment of error relied upon for a reversal of the judgment. Counsel for appellant did not indicate to the court the character of the special plea he desired leave to file, nor did he make any showing of a reasonable excuse or failure to file it sooner, nor does it appear that he was then prepared to file such special plea. Application for leave to file an additional plea, when made after a cause has proceeded to trial, is addressed to •the sound discretion of the court, and such application should be supported by a showing of some reasonable excuse for not having interposed the plea as a defense before the cause was called for trial. City of Chicago v. Cook, 204 Ill. 373; McFarland v. Claypool, 128 Ill. 397. The judgment is affirmed. Affirmed.