Donoghue v. Gardner , 24 Ill. 565 ( 1860 )

Breese, J.

By taking issue on® the plea, the plaintiff admitted it was correctly filed in the Circuit Court. The record shows the plea was on file nearly two months before the motion was made to strike it out, and no reason is shown or alleged why it should be stricken out. It appears, on inspection, that the similiter was added by the plaintiff’s attorney, it being in his handwriting, as appears by comparison with other papers in the cause, confessedly in his handwriting.

Whilst the similiter remained, the plaintiff recognized the plea as a plea in the cause, and before striking the plea out, he should first have obtained leave to withdraw the similiter. There was an issue made up on the plea, and we see no reason why it should have been disposed of in this summary way. The judgment is reversed, and the cause remanded.

Judgment reversed.