Donley v. Dougherty , 1900 Ill. App. LEXIS 243 ( 1901 )

Mr. Justice Adams

delivered the opinion of the court.

Appellant’s counsel contend that it was error to refuse to permit appellant to withdraw her original pleas, and to file a plea puis darien continuance. Also, that the action being joint against appellant William E. Donley the rendition against defendant alone was erroneous. The plea puis darien contimmnce was presented to the court after the plaintiff’s evidence was all in, and the plea was not verified. In Mount v. Scholes, 120 Ill. 394, 399, the court say of such a plea:

“ A plea of this kind involves grave legal consequences that do not attach to an ordinary plea. It only questions the plaintiff’s right to further maintain the suit. When filed, it, by operation of law, supersedes all other pleas and defenses in the cause, and the parties proceed to settle the pleadings de novo, just as though no plea or pleas had theretofore been filed in the case. By reason of pleas of this kind having a tendency to delay, great strictness is required in framing them. In this respect they are viewed much like pleas in abatement, and, for the same reason, they must, like those pleas, be verified by affidavit,” citing Chitty <on PL, and Tidd’s Practice.

Chitty says:

•“ Pleas after the last continuance must be verified on oath before they are allowed.” Chitty on Pl., 5th Am. Ed., p. 572.

The court properly ruled against the filing of the plea. When the plaintiff dismissed the suit as «to William E. Donley, the declaration being against both him and the appellant, there was a variance, but this variance was not pointed out in any manner by appellant’s counsel, which had it been, the plaintiff could have amended his declaration. The objection of variance can not be preserved by motion for a new trial, so that, if the motion be overruled, this court can pass on it. Alford v. Donnenberg, 177 Ill. 331.

On the dismissal of the suit against William E. Donley, appellant’s attorney made no objection on the ground of variance. He merely asked leave to withdraw appellant’s plea and file a plea puis, etc.

May 18, 1900, one of the days of the May term of the court, appellant’s attorney moved the court to set aside and vacate the order of May, 1900, overruling the motion for a new trial and granting an appeal and to arrest the judgment entered April 28,1900, at the April tern of the court. We find no error in the refusal of the court to vacate the order of May 11, 1900, or in the refusal to arrest the judgment rendered at the April term. A motion in arrest of a judgment rendered at a term prior to that at which the motion is made, is too late, and even though such motion were made in apt time, it could not preserve for review the objection of variance. Jacobs v. Marks, 183 Ill. 533.

We find no error in the record, and the judgment will be affirmed.