Gray v. McCane, 11 Ill. 325 (1849)

James Gray, appellant, vs. James W. McCance, appellee.

S. T. Logan, for appellant.

/Williams & Lawrence, for appellee, made the following ;'pó hats'-: ’■

. The answer- or. plea in this case, may be technically informal, but as the plaintiff did not except, but agreed that it should stand and be considered as an answer, he cannot now except to it. " The'answer states facts which, if true, were a good bar to thé prosecution. The plaintiff, by filing a replication, might have controverted their truth, upon the hearing of the motion, but having failed to reply, he admitted the truth of the answer, and must now be considered as having consented that the Court should determine the law of the case, arising upon the facts. And there can be no doubt that, upon the merits, the hill should have been dismissed. The plaintiff having agreed that the an­swer should be considered and received upon the motion, had no right to retract his agreement or admission, and except to the answer.

If there was any irregularity in the proceedings, it was waiv­ed by the complainant; substantially, and upon the merits, the decree of the Circuit Court was correct.' It being admitted by the pleadings, that there was another suit pending in the same Court, between the same parties, for the identical cause of ac­tion, and seeking the same relief, the complainant had no right to prosecute this suit. There was not, therefore, any reason for continuing it in Court, and the Court below did right to dismiss it.

Opinion by Mr. Justice Trumbull:

The defendant, in an answer, not under oath, alleged that the complainant had previously filed a bill against him in the same Court, in which he set up the same matters, and prayed the same relief as in this case ; that he fully answered said first bill, and that such proceedings were thereupon had that the injunc­tion granted in said suit was dissolved, hut that the suit was still pending and undecided.

The day after filing his answer, and before any replication thereto had been filed, the defendant entered a motion to dis­solve the injunction granted in this case, and to dismiss the bill. This motion the Court sustained; and that decision is now as­signed for error.

The decision of the Court was clearly erroneous. Admitting that the facts set forth in the answer, if proved—orJ^»g^Nd,h in a plea, and admitted—would have constitutj fence, the defendant, if he thought proper to answer, should have been required to furnish! truth. This, so far as the record shows, he answer furnished no evidence of the truth of I

The decree of the Circuit Court is reverse? remanded.

Decree reversed.