Northwestern University Law Review Volume 10

Northwestern University Law Review Volume 10

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1916 edition. Excerpt: ...on the demurrer: "We do not think the course adopted was the proper practice. Nor do we agree with counsel for the a pellant, that where a. court has made an order either sustaining or overru ing a demurrer to a pleading, such order passes beyond the control of the court. On the contrary "' " we are of opinion that under the present liberal practice the court has the power, and that it is its duty at any time before trial, when it becomes satisfied that an erroneous ruling has been made with respect to the sufliciency of a pleading, or other similar matter, to promptly set aside the order and correct the error. So, in the present case, when the trial jud e became satisfied that the plea in question was bad, he should have with rawn the case, at least temporarily, from the jury, set the order overruling the demurrer aside, and entered one sustaining the demurrer." (p. 181).'2 In Fish v. Farwell (1896),"' where the refusal of the lower court to carry the demurrer to certain replications back to the pleas 41. 115 I11. 177. 42. In Dowie v. Priddle (1905), 216 Ill. 553, there was a siinilar happening at the trial. The trial judge held had certain pleas of justification to which another judge had previously refused to carry back a demurrer filed to replications, and declined to allow the introduction of evidence under the pleas. Following Fort Dearborn Lodge v. Klein, the Supreme Court held that the case ought to have been temporarily withdrawn from the jury and an order entered sustaining the demurrer retroactively to the pleas. In Lafayette Bridge Co. v. Ci! of Streator (191)) (N. of I11.) 105 Fed. Rep. 729, the court, after re erring_ to the rule under discussion, declines to apply it in the case...
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Product details

  • Paperback | 392 pages
  • 189 x 246 x 21mm | 699g
  • United States
  • English
  • black & white illustrations
  • 1236780329
  • 9781236780324