Hawkins v. Albright

Citations

• 70 Ill. 87

Syllabus

<p>1. Abatement—waiver of plea in, by pleading to the merits. At common law, the filing of a plea in bar before a plea in abatement was disposed of, was a waiver of the plea in abatement. While it is true that a plea in abatement to a writ of attachment is, for most purposes, governed by the common law rules applicable to such pleas, yet, under our procedure, such a plea is not waived by the -filing of pleas in bar to the cause of action, and they should all be submitted to the same jury.</p> <p>% Attachment—defendant may plead to writ and to the merits at the seme time. As the defenses which may exist to the right to attach property have no necessary connection with defenses to the cause of action, the right to plead in abatement is not upon the condition of abandoning all other defenses, but, on the contrary, all other legitimate defenses to the merits may be interposed at the same time.</p> <p>3. Same—effect of plea in abatement. The effect of a plea in abatement traversing the grounds alleged, upon which a writ of attachment is issued, is simply to throw the burden of proving the grounds of attachment upon the plaintiff.</p> <p>4. Same—verdict and judgment. Where the verdict of the jury upon issues upon a plea in abatement to a writ of attachment, and upon pleas in bar, is all one way, as, for the defendant, this will be sufficient without any special finding as to each, and judgment may be rendered the same way, generally, for the party succeeding. If the jury finds the issue upon the plea in abatement one way, and upon the other issues for the other party, the judgment should be special, finding separately as to each.</p>