Robertson v. Moir , 88 Ill. App. 355 ( 1900 )

Mr. Presiding Justice Sears

delivered the opinion of the court.

A number of complaints are made by counsel for appellant as to matters of procedure in the trial court, some of •which we think are well founded.

It was not error to treat the second recognizance as valid, although by a former order of the court another recognizance had been accepted in lieu of the attachment lien, for by a subsequent order, which, however, preceded the entering into the recognizance here in question, the whole proceeding in relation to the former recognizance was set aside and became of no force whatever.

It was, however, error to strike from the record the fourth plea filed by appellant. The practice of attacking pleas by motion to strike off upon the ground that they were sham pleas, was in the common law practice based upon the obvious falsity of the plea or upon some showing by affidavit accompanying the motion, by which it was made to appear to the court that the plea thus attacked was so clearly a false plea that it could not be treated as presenting any matter of substantial litigation. 1 Chitty Pl. (9th Ed.), p. 542; Stephen on Pleading, (Andrews’ Ed.) Sec. 228.

The practice has never obtained as to pleas which amount to the general issue, for a general denial of the allegations of the plaintiff could never be treated as a sham plea. In an action by scire facias upon a forfeited recognizance, the plea of nul tiel record certainly puts in issue the record of the recognizance and is at least in effect a plea of the general issue. Slaten v. People, 21 Ill. 28; Compton v. People, 86 Ill. 176.

Therefore this plea could not properly be thus, attacked by motion to strike off.

But the only issue raised by this plea,, if it were not stricken off, was an issue which was for the court and not for a jury. 1 Chitty Pl. 557; Petty v. People, 19 Ill. App. 317.

The record which the appellant presents to us discloses to us, as it did to the court below, that the plea, however proper in form, could be of no avail to appellant.

There are other matters of procedure as to which error is assigned, and we are not prepared to hold that it is not, in some of the instances at least, well assigned. But the fact remains clear and beyond possible question that in the final judgment here appealed from, not only was substantial justice done, but a result was reached which can not be changed upon another trial. If ever so many trials of this cause were had, no disposition of it upon its merits other and different from the result now reached could be permitted. The attachment proceeding, the recognizance here sued upon, the final judgment against the defendant in the suit in which the recognizance was entered into, the breach of the condition thereof that the defendant should pay the judgment, and the forfeiture as to appellant, are all shown by the record now presented to us as facts beyond controversy. Another trial could be of no avail to appellant. The errors in the procedure of this trial are errors without prejudice. We must therefore decline to reverse the judgment because of such errors, merely to send the cause back for needless and useless procedure. The practice of this State amply warrants such disposition of this appeal. Lycoming Fire Ins. Co. v. Dunmore, 75 Ill. 14; Heckle v. Grewe, 125 Ill. 58; City v. Jackson, No. 8633 of this term, not yet reported, and cases cited.

The judgment is affirmed.