Horning v. Frank , 88 Ill. App. 87 ( 1900 )

Mr. Justice Freeman

delivered the opinion of the court.

The only question which we need consider in this case is whether it was error to permit defendants in error to withdraw a plea of puis darrein continuance, which had been demurred to and to refile a plea of general issue.

The plaintiff in error sued to recover for personal injuries, and to the declaration filed in his behalf, the defendants in error pleaded the general issue. Subsequently, and before the case was called for trial, the defendants by leave of court filed a plea of puis darrein continuance. To this the plaintiff filed general and special demurrers. When the case was called for trial, plaintiff’s counsel moved the court that the demurrers be sustained; whereupon defendants’ attorneys asked leave to withdraw the plea puis, and to file or refile the general issue, which, upon leave granted, was immediately done. It is urged that it was error to allow defendants to withdraw their said plea and return to the general issue; that the demurrers to the plea puis should have been sustained, the defendants defaulted and a jury impaneled to assess the plaintiff’s damages.

While it is true that a plea puis darrein continuance supersedes all other pleas and defenses, and by operation of law has the effect to cause all other pleas to be stricken from the record, the cause of action to be admitted, and everything confessed except the matter contested by the plea puis, (Angus v. Trust & Savings Bank, 170 Ill. 298,) yet under the twenty-third section of the practice act, allowing amendments the motion to withdraw it, and to reinstate the plea of the general issue, ivas properly allowed. The technical rule that the general issue was waived by the plea puis will not be allowed to deprive the defendants of a right to make their defense, if they desire to withdraw such plea before trial, and restore the plea of general issue. Whether terms shall be imposed is a matter within the sound discretion of the court. Eipley v. Leverenz, 183 Ill. 519-522. .

The judgment of the Superior Court is affirmed.