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64 Ill. App. 126

Hippach v. Makeever

Appellate Court of Illinois

Decided April 27, 1896

Appellate Court of Illinois · decided 1896-04-27

<p>1. Exceptions—Not Necessary to the Action of the Court on Demurrer.—The action of the court upon a demurrer is reviewable without an exception having been taken.</p> <p>2. Practice—Waiver of Error in Sustaining a Demurrer.—Where a defendant files special pleas to which a demurrer is sustained, and afterward stipulates that, under his plea of the general issue, he may prove any defense that might be proved under special pleas properly pleaded, he waives all error in sustaining the demurrer.</p> <p>3. Consideration—In Contracts of Guaranty. —The want of a consideration for a contract of guaranty indorsed upon a promissory note is not the subject of a special plea, and a demurrer to such a plea, on the ground that it amounts to the general issue, is properly sustained.</p> <p>4. Pleading—Matters in Abatement not to be Pleaded in Bar.—The fact that before the commencement of a suit upon a promissory note the defendant, a guarantor, was summoned as garnishee in an attachment suit against the maker and payee, and which was still pending, is pleadable in abatement and not in bar.</p> <p>5. Actions—Defendant Served as Garnishee in Another Proceeding, —Where a defendant in an action at law has been summoned as garnishee in a proceeding by attachment for the same cause, such attachment and service as garnishee is probably only cause for postponing the action until the attachment is disposed of.</p>

Cited by 1 later decisions — most recently November 1907

1 state decisions

Relies on Klein v. Currier · Roche v. Rhode Island Insurance · Guard v. Whiteside

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1896-04-27

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Gary, P. J.

¶1I concur, but add as a further opinion of the court, that the pleas were mere waste paper.

¶2The first special plea was that the appellee held the note for the benefit of the payee, and that the appellant indorsed it without consideration.

¶3The legal title to the note being in the appellee was enough. Foster v. Second Nat’l Bank, 61 Ill. App. 272; Whitford v. Herting, 60 Ill. App. 413.

¶4And the want of consideration for the guaranty is not the subject of a special plea, if it be specially demurred to— as this was—on the ground that it amounts to the general issue. Klein v. Currier, 14 Ill. 237.

¶5The other special plea is that the appellee held the note for the benefit of the payee, and that before this suit was commenced, the appellant was summoned as garnishee in an attachment suit—which was still pending—against the payee and maker. At the most, this was only pleadable in abatement, not in bar. The effect of holding it to be a bar, if proved, would be that if the ■ attachment suit failed, the appellee could never sue again. Guard v. Whiteside, 13 Ill. 7.

¶6But the modern rule probably is that such attachment is only cause for postponing the cause in which such defense is interposed, until the attachment is disposed of. 1 Ency. Pl. & Pr. 765; Roche v. Rhode Island Ins., 2 Ill. App. 360; Brickey v. Davis, 9 Ill. App. 362.

¶7NTowhere was such matter ever held to be a bar.

¶8Affirmed.

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