Salomon v. McCormick

Decided June 4, 1901

Appellate Court of Illinois · decided 1901-06-04

<p>1. Practice — Trial Before Issues Made Up, Erroneous. — Where the record fails to show the filing of a replication to a special plea, a trial and judgment in the absence of the defendant and his attorney will be irregular and erroneous.</p>

Cited by 2 later decisions — most recently March 1955

2 state decisions

Key passage — most relied on by later courts

““In this condition the cause was not at issue and was not ready for trial. The cause was nevertheless called for trial, in the absence of the defendant, or any counsel representing him, and evidence was heard and a verdict and judgment rendered in favor of appellee. “This was error, there being no waiver of the objection that there was no replication to the special plea or other disposition made of it. Blake v. Miller, 118 Ill. 500 ; Condon v. Cohn, 88 Ill. App. 333 , and cases cited.””

quoted by 1 later decision, including 234 Ill. App. 309 - Stare v. Vayda

Relies on Blake v. Miller · Condon v. Cohn

Good law ✅— No negative treatment on recordhow we know

Reversed and remanded · Decided 1901-06-04

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Mr. Presiding Justice Shepard

¶1delivered the opinion of the court.

¶2This was a proceeding in distress for rent. A declaration consisting of the common counts in assumpsit was filed. To this the defendant (appellant) filed a plea of the general issue and a special plea of new matter. No issue upon either of the pleas was ever joined, nor was any disposition ever made of the special plea. In this condition the cause was not at issue and was not ready for trial. The cause was nevertheless called for trial, in the absence of the defendant, or any counsel representing him, and evidence was heard and a verdict and judgment rendered in favor of appellee.

¶3This was error, there being no waiver of the objection that there was no replication to the special plea or other disposition made of it. Blake v. Miller, 118 Ill. 500; Condon v. Cohen, 88 Ill. App. 333, and cases cited.

¶4The judgment is reversed and the cause remanded.