
    (No. 12672.
    Motion to dismiss denied.)
    James Thomas Kelly et al. Defendants in Error, vs. Mary Kelly et al. Plaintiffs in Error.
    
      Announced orally February 5, 1920.
    
    
      Practice — defense that writ of error is barred by the Statute of Limitations must be raised by plea. The defense that a writ of error is barred by the Statute of Limitations must be raised by plea and not by a motion.to dismiss the writ. (Peterson v. Manhattan Life Ins. Co. 244 Ill. 329, adhered to; contrary expression in People v. Evans, 262 id. 235, following International Bank v. Jenkins, 104 id. 143, overruled.)
    Writ of Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding,
    C. W. Greenfield, for plaintiffs in error.
    Quin O’Brien, for defendants in error.
   Mr. Justice Cartwright

announced the decision of the court:

On February 24, 1919, the plaintiffs in error, Mary Kelly and Jennie O’Brien, sued out of this court a writ of error to the superior court of Cook county to bring in review the record of a suit in that court in which the defendants in error, James Thomas Kelly, John P. Kelly and Nellie Murray, were complainants and the plaintiffs in error were defendants. The record filed on June 13, 1919, as a return to the writ contains a bill filed by the defendants in error on October 2, 1915, to declare a trust in certain lots in Chicago and to compel plaintiff in error Mary Kelly to convey the same to the defendant in error James Thomas Kelly; an entry of appearance on October 14, 1915, b.y the plaintiffs in error; a rule on the plaintiffs in error on November 23, 1915, to plead, answer or demur instanter to the bill and a default for want of answer; demurrers to the bill filed on November 24, 1915; a decree pro con fesso on February 21, 1916, in accordance with the prayer" of the bill; an order on March 27, 19x6, denying the motion of the plaintiffs in error to set aside the default and an order taking the bill as confessed; a motion of the plaintiff in error Mary Kelly on April 1, 1916, for leave to file her answer to the bill of complaint, and an order on July 20, 1916, denying the motion.

The defendants in error have presented to the court ■ their motion to dismiss the writ of error because it was not sued out within the time allowed by statute. In the case of Burnap v. Wight, 14 Ill. 303, in which a motion was made to dismiss the writ of error because the Statute of Limitations operated as a bar to its prosecution, the court held that such a defense could not be interposed by a motion to dismiss but must be relied on by plea so that the plaintiff might reply' that the case was within the exceptions in the statute. In Hauger v. Gage, 168 Ill. 365, it was again held that the statutory limitation for prosecuting writs of error could not be set up by a motion but must be pleaded so that the plaintiff in error might reply, showing, if he could, that he was within some saving clause of the statute. In the case of International Bank v. Jenkins, 104 Ill. 143, it was said that the English practice required a plea setting up the statute, but it might be presented by a motion to dismiss as well as by a plea where it appeared on the face of the record that the suit was barred and no circumstances alleged to take the case out of the statute. In Peterson v. Manhattan Life Ins. Co. 244 Ill. 329, it was held that the defense of the Statute of Limitations could only be interposed by plea; that the decision in International Bank v. Jenkins was erroneous in principle, and it was overruled. In People v. Evans, 262 Ill. 235, where there had been a joinder in error, after which the bar of the statute could not be interposed, and the question was not involved, the statement made in International Bank v. Jenkins was repeated without noticing the overruling decisión, and the statement made was wrong. The motion is denied.

The defendants in error made an alternative motion for time to plead or join in error in case their motion to dismiss the writ should be denied. That motion is allowed, and the defendants in error, if so advised, may plead to the writ within five days or may join in error by filing their brief and argument within twenty days.

Motion to dismiss denied.  