Linder v. Barnett

3 Citing cases

  1. Ollman v. Ollman

    71 N.E.2d 50 (Ill. 1947)   Cited 24 times

    Appellee claims that the defense of condonation cannot avail appellant because it is not alleged in his answer, and says this position is supported by Lipe v. Lipe, 327 Ill. 39, and Klekamp v. Klekamp, 275 Ill. 98. It has long been the rule in chancery that an affirmative defense, to be availed of, must be set up by the defendant in his answer. (Linder v. Barnett, 318 Ill. 259.) If he does not apprise the opposite party of such defense and set it forth in his pleadings, he is precluded from urging the same even though it may appear to be within the evidence. (Hunsley v. Aull, 387 Ill. 520.) This is true as a general proposition, but an action for divorce involves interests other than those of the parties litigant.

  2. Stevens v. David

    100 N.E.2d 526 (Ill. App. Ct. 1951)

    In the case of Crone v. Crone, 180 Ill. 599 it is there stated: "That a defendant in chancery is bound to apprise the complainant of the nature of his defense, and cannot avail himself of matters of defense appearing from the evidence, but not set up in the answer." In the case of Linder v. Barnett, 318 Ill. 259, the suit was filed for specific performance. An answer was filed and the decree was entered in favor of the plaintiff.

  3. Horan v. Goldman

    5 N.E.2d 759 (Ill. App. Ct. 1937)   Cited 1 times

    We think there is no merit in this contention. In Linder v. Barnett, 318 Ill. 259, the court said (p. 265): "It is a rule of chancery pleading that a defendant by his answer is bound to apprise a complainant of the nature of the defense he intends to set up, and he cannot avail himself of any matter in defense not stated in the answer even though it should appear in the evidence." Moreover, no objection or exception was taken by defendant to the decree of foreclosure, and he cannot now be heard to complain.