Maegerlein v. City of Chicago , 237 Ill. 159 ( 1908 )

Mr. Justice Scott

delivered the opinion of the court:

No proof was offered which would sustain a recovery under the first or second count of the declaration, either as originally filed or as amended. In fact, those counts were abandoned by the plaintiff upon the trial. The third count first appears in the case as a count in the amended declaration filed on March 12, 1907, and it is now conceded that it states a cause of action other and different from the causes of action stated by the first and second counts, either as those counts were originally filed or as they were amended. To the amended declaration so filed on March 12 it was ordered that the plea of the general issue which had been filed to the original declaration should stand as pleaded to the declaration as amended. The plaintiff,’ on April 22, 1907, pursuant to leave of court, amended his third count by filing a count introduced as follows: “And now comes the plaintiff, by his counsel, and amends the third count of the declaration heretofore filed by him so as to read as follows,” and then follows a count which is in itself complete. It does not, by reference or otherwise, make the original third count, or any part thereof, a part of the amended count. The original third count, while still a part of the record in the case, was withdrawn and superseded by the amended third count, so that it was no longer a part of the plaintiff’s averments against the defendant. 1 Ency. of Pl. & Pr. 625; Baker v. L. & N. T. Co. 106 Tenn. 490.

It appears both by the original and by the amended third counts that the alleged wrong or wrongs upon which those counts were founded occurred more than five years before the filing of the original third count. The appellant, in effect, concedes that had the Statute of Limitations been filed to the original third count it would have presented a defense thereto, but insists that the amended third count states the same cause of action as the original third count; that it is but an amplification of that count, and that the defendant having elected to file the general issue and not to file a plea of the Statute of Limitations to the original third count, thereby waived and lost its right to file the plea of the Statute of Limitations as to the cause of action set up by the original third count. The cases upon which he relies are cases in which no plea of the Statute of Limitations was ever filed. At the time of the filing of the plea of the Statute of Limitations to the third count as amended, the court might, in its discretion, have given leave to defendant, upon application, to file a plea of the Statute of Limitations to the original third count had no amendment thereto been made. When the plea of the statute was interposed to the third count as amended, no motion to strike it from the files was made and no objection was taken to. it on the ground that it had been filed without leave. On the contrary, plaintiff demurred to it for the reason “that said third count, as amended, of the plaintiff’s declaration is the same cause of action as originally filed by the said plaintiff and not a different cause of action,” and that demurrer the court sustained. We think that upon the record made herein it should not now be said that this plea was filed without leave of court,—this on appellant’s theory that the cause of action stated in the third amended count is the same cause of action as that stated in the third original count. If the cause of action stated in the third amended count was not the same as that stated in either of the counts theretofore filed, defendant unquestionably had the right, without leave, to interpose the plea of the statute. That plea presented to the third amended count a perfect defense.

It is not urged that the Appellate Court should have remanded the case if it was correct in holding that the demurrer to the plea of the Statute of Limitations should have been overruled.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.