Thomas v. Fame Insurance

Citations

• 108 Ill. 91
• 1883 Ill. LEXIS 59

Syllabus

<p>1. Peaotioe—when Appellate Court reverses, hut fails to find facts—■ preswmption. Where the Appellate Court reverses the judgment of a circuit court, but fails to recite in its final order the facts as found by it, it will be presumed that the Appellate Court found the facts the same way as did the trial court, and reversed for some error of law in the proceedings; and in such case, if the record of the trial court fails to show any error as to the law, the judgment of the Appellate Court must be reversed.</p> <p>2. Amendment—change of parties is not a change of the action. It was evidently the intention of the legislature in adopting the provision in section 24 of the Practice act, that no amendment after the commencement of the suit and before final judgment, resulting merely in a change or substitution of parties to the action, or in a change of the form of the action, should be deemed a change of the action itself. The identity of the cause of the action, in such case, is still preserved.</p> <p>3. Same—right of defendant to plead limitation after amendment. Where, after the time limited by contract for bringing an action on a policy of insurance, an amendment is allowed, not changing the original cause of action or ground on which a recovery is sought, but merely changing the parties plaintiff by substituting another person as plaintiff, a plea setting up the limitation presents no defence, the suit having originally been commenced within the time limited.</p> <p>4. But where some new cause of .action has been introduced into a suit by amendment, against which the Statute of Limitations had run before making such amendment, the defendant will be entitled to present the bar of the statute as to such new claim or cause of action. '</p> <p>5. iNStraANOE—breach of warranty a defence, without showing an increase of rislc. Where an application for insurance provided that the answers to the questions therein propounded should form a part of the contract of insuranc