Wilday v. Wight

Citations

• 71 Ill. 374

Syllabus

<p>1. Amendment after plea, in abatement for variance between writ and declaration. A plea in abatement for a variance between the writ and declaration is effectually disposed of by an amendment, made by leave of court, which removes the objection, and makes the writ and declaration conform to each other.</p> <p>2. Same—the Practice Act of 1872 should be liberally construed. The Practice Act of 1872 should be liberally construed, so that mere technical mistakes shall not operate to delay the administration of justice, and there is no reason why, under,that act, a plaintiff' may not, on his own motion, be permitted to amend the summons to conform to the declaratioh where there is a variance and a plea in abatement filed setting up that fact.</p> <p>3. Judgment by nil (licit. Where there was a plea in abatement for variance between the writ and declaration, and, at the same term of court, the writ was, by leave of court, on motion of the plaintiff, amended so as to conform to the declaration, and a rule on the defendant to plead ten days before the next term of the court, and at the next term a replication was, by inadvertence, filed to the .plea in abatement, but, by leave of court, withdrawn before issue was joined on it, and the defendant having failed to plead as he was ruled to do, it was proper to render judgment against him as upon nil dicit, notwithstanding the plea in abatement was not formally disposed of.</p>