Bemis v. Homer

Citations

• 145 Ill. 567
• 33 N.E. 869

Syllabus

<p>1. Pleading—failure of consideration as against assignee—notice of defense. A plea to an action brought upon a promissory note by the assignee before due, alleged that the note was executed by the defendant and placed in the hands of a third party, to be used by him in the purchase of certain shares of stock for defendant, and was never intended to be and never was delivered to the payee, but was wrongfully obtained by him from said third person, and was never applied as intended, or in any manner for the benefit of the defendant, averring generally that plaintiffs had notice of the premises, but failed to state that they had such notice at or before the time the note was assigned to them: Meld, that in respect to the allegation as to notice the plea was defective.</p> <p>2. Same—striking pleas from the files. The fact that a plea is defective is no ground for striking the same from the files. It is only ground of demurrer.</p> <p>3. Same—amendment to avoiddefects. It is the duty of courts to reasonably exercise their power to allow amendments of the pleadings. It is the policy of our statute relating to amendments, that parties shall not be deprived of any substantial right through defects or omissions in pleadings, if they will use reasonable diligence to avoid the result by applying to the court for leave to amend or supply the omission.</p> <p>4. Practice—leave to file further pleas. When the defendant has once availed himself of the right to plead, by filing the general issue, he can only file other pleas by leave of the court. When the defense set up is not available under the general issue, and there is no unreasonable delay in asking leave to file special pleas so as to present the defense, it will be error to refuse leave to file such pleas.</p> <p>5. Same—extension of time for filing pleas. When leave is given the defendant to file special pleas within a given time, and his counsel is prevented from filing the same on the last day allowed, by reason of