People ex rel. Baumann v. Gest

Mr. Presiding Justice Thompson delivered the opinion of the court. The answer of the respondent did not traverse any allegation of the petition. The statement in the answer denying that neither on the first Monday in May, 1903, was any legal license issued nor on the first Monday of each succeeding November and May was any such legal license issued, is not a traverse of the averment of the petition that at each of said times there had been issued a license to sell intoxicating liquors, etc., in said building. The answer limited the denial to a legal license. The traverse was insufficient because it was not as broad as the averment. The only other averment of the petition attempted to be traversed was that which stated that there were no wine rooms or stalls in connection therewith that have doors, etc. The respondent denies this averment, but immediately, in the same sentence, limits the denial by stating that they are now temporarily displaced and ready to be placed in position in case petitioner secures a license. The effect of the answer is that the wine rooms, etc., are now removed. If they should be replaced the ordinance makes provision for the revocation of the license. The respondent officially was not concerned with what the mayor might or might not do concerning the license. It was the duty of the city treasurer to receive the money tendered without regard to the mayor’s intentions. If one officer may govern his acts because of what some other officer may say he will do, then it is in the power of officers seriously to embarrass each other. So far as the treasurer is concerned no legal reason is set up in the answer for his refusal to receive the money tendered. If the relator should be unable to secure the license from the officer whose duty it is to issue it, still that was no reason for the failure of the treasurer to receive the money. The demurrer was properly sustained to the answer. It is now insisted by appellant that the demurrer to the answer should have been carried back to the petition. The appellant had filed a demurrer to the petition which had been overruled. Mandamus is a common law action and governed by the rules of the common law as to pleading. People ex rel. v. Crabbe, 156 Ill. 155. “It is a general rule of pleading that a demurrer, at whatever stage it is interposed, reaches back in its effect through the whole record and attaches ultimately to the first substantial defect in the pleadings on whichsoever side it may have occurred, defects in substance not being aided by the adverse party’s mere pleading over, as formal defects are. Gould on PI. 441; 1 Chitty Pl. 668. A demurrer may be carried back to the declaration, where that pleading is so defective that judgment upon it would be arrested. McFadden v. Fortier, 20 Ill. 509. The rule would seem to be that the defect in a declaration to which the demurrer will be carried back must be one for which the judgment should be arrested and not otherwise.” People ex rel. v. Crabbe, supra. The general rule is that the court will not carry a demurrer back and sustain it to a pleading to which a demurrer has already been overruled. Culver v. Third National Bank, 64 Ill. 528. “But if the declaration is so defective as not to support a judgment, that may be availed of on error, even after a demurrer has been overruled and the defendant has pleaded over. ’ ’ Kipp v. Lichenstein, 79 Ill. 358; Smalley v. Edey, 19 Ill. 207; People ex rel. v. Spring Valley, 129 Ill. 169. The petition was not sufficiently defective in substance to require the judgment to be stayed on a motion in arrest, and there was no error in refusing to carry the demurrer back to the petition. The .judgment is affirmed. Affirmed.