Burton v. Gagnon , 1903 Ill. App. LEXIS 496 ( 1903 )

Mb. Justice Freeman

delivered the opinion of the court.

It is urged by appellant’s attorney that at the time the order of dismissal was entered, appellee George S. Gagnon was in default, having failed to plead or demur to the amended declaration and the amended additional counts, and that the demurrer of the other appellee, Sophia Burton, to the amended declaration was undisposed of, the court having sustained it to the amended additional counts only. An examination of the record apparently shows the objection to be well taken. Ho exception is preserved to the order sustaining the demurrer to the common counts, and we can not consider the alleged error in that respect. But to dismiss a suit where a declaration is on file to which there is no plea or demurrer filed by one defendant and with a demurrer by another in part undisposed of, is clearly erroneous.

There were affidavits filed by appellees’ attorneys, containing statements which it might be proper to show by evidence at a trial, but which were not entitled to consideration upon demurrer, and have no bearing upon the propriety of the order of dismissal. The judgment of the Circuit Court must be reversed and the cause remanded.