Thomas v. Lowy

Citations

• 60 Ill. 512

Syllabus

<p>1. Pjromissoky note — judgment confessed — coverture—general issue — plea in abatement. A husband and his wife joined in the execution of a note and power of attorney to confess a judgment, and on the maturity of the note a judgment was confessed thereon, an execution was issued, when a motion was made to set aside the execution, vacate the judgment and permit the parties to plead. The court let the parties in to plead^when they filed the'plea of the general issue, and a plea of the coverture of the wife. To this latter plea a demurrer was sustained, and the wife thereupon filed a plea of her coverture in abatement, and the plaintiff moved tostrike this plea from the files, but the motion was denied. A trial was had resulting in a judgment in favor of the wife and against the husband: Held, the suit was improperly brought against the wife, as she was not legally liable; the joint plea in abatement was obnoxious to a demurrer, as it came too late after the plea in bar.</p> <p>2. Abatement. That the plea in abatement filed by the wife also came too late, as she had joined her husband in the plea in bar, and it should have been stricken from the files. Matter in abatement must be pleaded before pleas in bar,, to be available.</p> <p>3. It was error to render a judgment against the husband alone, as he was sued jointly with the wife. In suits on contract, a recovery must be had against all or none of the defendants sued.</p> <p>4. Same — evidence. Evidence of coverture may be pleaded or given in evidence under the general issue, but it can not be allowed except it be proved, and in the absence of such proof on producing the note as it was executed, the plaintiff was entitled to judgment against both defendants.</p> <p>5. Statute — practice. Where the execution of a note is not put in issue by a sworn plea, nor evidence that either of the parties was not liable, the act of March 26th, 1869, can have no application. Had the plea of the wife been in bar instead of abate