Stoetzell v. Fullerton

Citations

• 44 Ill. 108

Syllabus

<p>1. Abatement— death of coplaintiff—suggestion of matter of form—design of statute relative to. The statute relative to the abatement of suits by the death of parties, was designed to prevent abatement in any case where the cause of action would survive, on the suggestion of the death, which suggestion is a matter of form, and may be made by either party.</p> <p>2. Same — when suit does not abate. In a joint action of assumpsit, on account, by two plaintiffs, where one of them, pending the suit, died, and judgment was afterward rendered therein, and without suggestion of such death having been made, — held, that the suit did not abate ; the survivor, on the death of his co-plaintiff, being entitled to prosecute the action to final judgment.</p> <p>3. Same — defendant should avail himself of the death of plaintiff by plea in abatement—failure to do so —effect of. In such case, the defendant to have availed himself of the fact of the death of one of the plaintiffs, should have pleaded it in abatement; but having failed to do so, and allowed the cause to be tried upon the merits, under the plea of non assumpsit, under which plea such death could not have been proved, he is bound by the judgment rendered therein, and cannot afterward question it in a collateral proceeding.</p>