St. Clair County IL Archives Court.....Beer, V Philips 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 28, 2008, 3:33 am

Source: Reports Of Cases Illinois
Written: 1819-31

December Term 1822, VANDALIA.

Wm. Beer, H. Beer, and Thomas Beer, Plaintiffs in Error, v. Daniel Philips, 
Defendant in Error.

ERROR TO ST. CLAIR.

If, after the decision of the court, overruling a demurrer, the defendant 
rejoins to the replication and issue is taken thereon, it is a complete waiver 
of the demurrer.

After abandoning a demurrer, the decision upon it can not be assigned for 
error.

Opinion of the Court by Chief Justice Reynolds. This was an action of trespass 
quare clausum fregit, commenced by Philips against the Beers in the court 
below. The defendants below pleaded not guilty, and liberum tenementum. Upon 
the first plea, issue was taken, and to the second, the plaintiff replied 
specially—to this special replication the defendant demurred, and the court 
overruled the demurrer. The judgment of the court in overruling this demurrer 
is assigned for error. We have not deemed it material to set out the facts 
disclosed by the replication, because we think the case can be disposed of 
without a decision upon its merits. After the decision of the court, 
overruling the demurrer, the defendant rejoined to the replication, and took 
issue thereon. This we consider was a complete waiver of the demurrer. If the 
court below erred, the defendants in that court, to have availed themselves of 
that error, should have abided by their demurrer, and not traversed the 
replication. After abandoning the demurrer, they cannot assign the decision 
upon it for error. The judgment of the court below is affirmed. (1)

Judgment affirmed.

------------------
(1) Such is the rule of pleading to the merits. Peck v. Boggess, 1 Scam., 281. 
Bucmaster v. Grundy, id., 312. Gilbert v. Maggord, id., 471. McFadden v. 
Fortier, 20 Ill., 509. But it is otherwise in pleas in abatement. It was once 
so held in Delahay v. Clement, 2 Scam., 575; but this decision was overruled 
in the same case in 3 Scam., 201. And it is now settled that if a demurrer to 
a plea in abatement be sustained, and the defendant answer over, he is not 
thereby precluded from examining the decision on the demurrer in an appellate 
court. Delahay v. Clement, 3 Scam., 201. Weld v. Hubbard, 11 Ill., 574. If an 
unanswered demurrer is on record, and the party filing it goes to trial by 
consent, it will not be cause for reversal of the judgment. Parker v. Palmer 
et al., 22 Ill., 489.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

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