Cheney v. City National Bank of Chicago

Citations

• 77 Ill. 562

Syllabus

<p>1. Summons—sufficiency of motion to quash. Where the first summons issued in a cause was returned “not found,” and thereupon, within ten days of the commencement of the term, an alias summons was issued, returnable to the same term, which was served, and the cause continued, and the defendant, at the next term to which the cause was continued, moved the court “to quash the writ issued herein,” which motion was overruled : Held, that the motion was defective in not specifying which writ was intended, and hence the question was not properly presented whether the second summons, issued within ten days of the term, should not have been made returnable to the next succeeding term.</p> <p>2. Purchase money—existing incumbrance as a defense. To an action upon a promissory note given for the purchase money of land, the defendant pleaded that the land was conveyed by warranty deed with full covenants ; that the land was not free of incumbrance, but was incumbered and charged with the payment of certain taxes, amounting to §448.40, which had not been paid, but were still a lien upon the land: Held, that the plea was bad on demurrer, as it failed to show that the grantee had paid the incumbrance, or had been disturbed in the possession of the land in consequence of the same.</p> <p>3. Where the grantee of land under a deed covenanting against incumbrances, discharges an existing incumbrance for taxes on the land, lie may, in a suit upon the note given by him for the purchase money, sustain a plea of ¡rartial failure of consideration.</p> <p>4. Remittitur. Where the plaintiff, after the adjourmnent of the court at which he recovers judgment for too large a sum, files a remittitur of the excess, and a similar one in this court, on appeal, with a request that it be acted upon under section 82 of the Practice Act of R. S. of 1874, this court will allow the same, and thus cure the error, if any.</p>