Harbaugh v. City of Sullivan

Mr. Justice Eldredge delivered the opinion of the court. Much of the argument of counsel is directed to a discussion of the merits of the first five pleas, but from the view we take of this case it is unnecessary to determine the sufficiency of those pleas because whether they were good or bad the plea of the statute of limitations, in our opinion, must prevail. Over ten years had elapsed since the cause of action accrued before suit was brought, and it is apparent that the question whether the cause of action is barred by the statute of limitations must be determined by first ascertaining what the cause of action is as shown by the record in the case. Appellant filed no replication setting out facts which might take the cause of action out of bar of the statute, but elected instead to demur to the plea. We therefore have in the pleading proper, for consideration, the declaration consisting simply of the common counts and the plea of the statute of limitations. It is insisted by appellant that the defense of the statute of limitations cannot apply because the money sued for was a trust fund held in trust by the City of Sullivan for the use of appellant, and that this fact is shown by the averments in the bill of particulars. It is perfectly clear that without the aid of the bill of particulars there is nothing in the record to show that this action is brought to recover a trust fund. The court cannot go out of the pleadings to ascertain the character of the obligation. Hart v. Tolman, 6 Ill. (1 Gilm.) 1. A declaration and all other pleadings are a part of the record. A bill of particulars is no part of the record unless made so by a bill of exceptions. Eggleston v. Buck, 24 Ill. 262; Franey v. True, 26 Ill. 184; Schofield v. Settley, 31 Ill. 515; Garrity v. Lozano, 83 Ill. 597; Star Brewery v. Farnsworth, 172 Ill. 247. The object of a bill of particulars is to inform the defendant of the claim he is called upon to defend against, and its effect is to limit the plaintiff on the trial to the proof of the particular cause or causes of action therein mentioned. Star Brewery v. Farnsworth, supra; McKinnie v. Lane, 230 Ill. 544. In the case of Fish v. Farwell, 160 Ill. 236, wherein the question of whether a bill of particulars, filed prior to the time of filing of certain additional counts, could be resorted to in determining whether said additional counts stated new cause of action against which the statute of limitations had run, the court said: “But, in any event, we are wholly unable to see how the bill of particulars helps out the original declaration. A court cannot go outside of the declaration to ascertain the cause of action. (Hart v. Tolman, 1 Gilm. 1.) A notice of stipulation filed with the declaration forms no part of the declaration, and the declaration cannot be aided by reference to it. (Humphrey v. Phillips, 57 Ill. 132; Quincy Whig Co. v. Tillson, 67 Ill. 351.)” In the latter case of Heffron v. Rochester German Ins. Co., 220 Ill. 514, the court cites the case of Fish v. Farwell, supra, and quotes with approval the language of the opinion above set out herein. .The character of the cause of action must be ascertained from the declaration itself and cannot be determined from the statements in the bill of particulars or from other matters not in the record. The plea under consideration was a complete defense to the declaration and the court did not err in overruling the demurrer to it. The judgment is therefore affirmed. Affirmed.