Upon an issue in law arising upon a dilatory plea, the form of judgment for the plaintiff is that the defendant answer over, which is thence called a judgment of “respondeat ouster.” This not being a final judgment, the pleadings is resumed, and the action proceeds.
“Where an issue of fact is made up on a plea to the jurisdiction, a judgment of respondeat ouster is a favor to the party; the judgment quod recuperet, being authorized.” Mineral Point Railroad Company v. Keep, 22 Ill. 9 (1859).
“The judgment on this plea of respondeat ouster may be considered, as a favor extended by the court to the plaintiffs in error, for ordinarily, the judgment would have been quod recuperet, an issue of fact having been joined upon the replication and found for the plaintiff. The same jury that tried this issue might have assessed the damages. The facts alleged in the plea to the jurisdiction and the issue upon it, were properly tried by the jury. But it may be observed, this plea to the jurisdiction was not properly pleaded, and on motion would have been stricken from the file. It was pleaded by attorney. The rule is it must be pleaded in person, and not by attorney, because the latter would admit the jurisdiction of the court.” Mineral Point Railroad Company v. Keep, 22 Ill. 9 (1859).
“The order of May 4, 1917, was right, because the only judgment that could have been entered on this plea in abatement was that the defendant should answer over, the common-law judgment of respondeat ouster. The plea very properly concluded as follows: ‘Wherefore defendant prays that said plea be sustained, that this cause of action be dismissed, and, if the same be overruled, the defendant have leave to answer over upon the merits.'” Philadelphia & Reading Coal & Iron Co. v. Kever, 260 F. 534 (2d Cir. 1919).