Lindsay v. Stout , 59 Ill. 491 ( 1871 )

Mr. Justice McAllister

delivered the opinion of the Court:

In this case, which was assumpsit upon two promissory notes, the defendant below filed, first, a plea in abatement, averring that plaintiff was a married woman at the commencement of the suit, and her husband was still living. To this plea plaintiff first demurred, then obtained leave to withdraw the demurrer, and, replying, alleged that the notes sued on were her sole and separate property, etc. Rejoinder by defendant, traversing the matters alleged.

At a subsequent term the defendant, by leave, filed the general issue, and a special plea setting up that the notes were obtained by fraud. At the next term the defendant, by leave, withdrew the plea of the general issue. The record shows that, as the case then stood, there was a trial by a jury, and verdict for plaintiff for $265.33, upon which judgment was rendered.

There is nothing in the record to show that the plea of fraud was answered by either demurrer or replication.

The defendant, by filing the general issue and special plea to the merits, waived the plea in abatement, and when the general issue was withdrawn, the case stood merely upon a plea of confession and avoidance; that plea remaining unanswered at the time of the so-called trial, there was no issue to be tried, and the unanswered plea constituting a.good bar to the action, the judgment of the court below is erroneous, and must be reversed, and the cause remanded.

Judgment reversed.