Fisher v. Cook

Citations

• 125 Ill. 280
• 17 N.E. 763

Syllabus

<p>1. Plea in abatement—time of filing. Four terms after an amendment of the declaration in an action at law, by adding two new counts, the defendant, without withdrawing his plea of the general issue to the original declaration, and without leave of court, filed a plea in abatement, setting up the non-joinder of another party defendant, which was stricken from the files on plaintiff’s motion: Held, that the plea was properly stricken from the files, for the reason it was not filed at the earliest practicable time.</p> <p>2. Parties—several liability of tort feasors. In an action on the case to recover for a personal injury resulting from the negligent conduct of the defendant’s servant in the management of an elevator, the defendant pleaded in abatement that the building and property mentioned in the declaration is not, and never was, the property nor in the possession of the defendant, but is, was, and always has been, the joint property of the defendant and another person named, who is still living; and also that the servant mentioned in the declaration is not, and never was, in the employ of the defendant, but is, and was at the time mentioned, etc., in the joint employ of the defendant and such other person: Held, that the plea presented an immaterial issue. If the two were liable, each was, and the action was maintainable against either wrongdoer.</p>