(No. 11334-Decree affirmed.)

MARTHA E. CAMPBELL, Plaintiff in Error, vs. JOHN CAMPBELL et al. Defendants in Error.

Opinion filed June 21, 1917.

APPEALS AND ERRORS—when decree will be affirmed for failure to file abstract of record. Where the plaintiff in error has failed to file an abstract of the record as required by rule 14 of the Supreme Court, and the evidence as ascertained from statements in the briefs is conflicting, the decree will be affirmed.

WRIT OF ERROR to the Circuit Court of Hamilton county; the Hon. CHARLES H. MILLER, Judge, presiding.

J. WILSON JONES, for plaintiff in error.

J. H. LANE, M. S. WHITLEY, and CHARLES E. COMBE, for defendants in error.

Mr. CHIEF JUSTICE CARTER delivered the opinion of the

court:

No abstract of the record in this case has been filed, as required by rule 14. The briefs of the parties agree in the statement that the case was begun by the filing of a bill in chancery by the plaintiff in error against the defendants in error praying for the declaration of a trust in certain real estate in Hamilton county, that the bill was afterward amended and was answered, and that upon a hearing it was dismissed by the court for want of equity. No statement of the allegations of any of the pleadings has been made, and the nature of the controversy is indicated only by what is called an abstract of the evidence contained in a statement, brief and argument filed on behalf of the plaintiff in error. There is no description, either in this so-called abstract or the briefs, of the various tracts of land supposed to be involved, of the instruments by which they are supposed to have been conveyed or the mortgages and other liens sup

posed to affect the title. The claims made by the parties as to the value of the land in which the plaintiff in error appears to have had an equity of redemption and as to the value of her interest are widely at variance, the evidence so far as set forth in the briefs is conflicting, and there is no preponderance of the evidence in favor of plaintiff in error. The cause has been submitted in entire disregard of the rules of the court and no error has been disclosed for which the decree should be reversed. It is therefore affirmed. Decree affirmed.

(No. 11322.-Judgment affirmed.)

JOSEPHINE BERRY, Defendant in Error, vs. A. F. TURNER, Plaintiff in Error.

Opinion filed June 21, 1917.

1. PRACTICE—when the merits of a case cannot be considered by the Supreme Court. Where the Appellate Court does not pass upon the merits of the cause as raised by the assignments of error but affirms the judgment or dismisses the appeal or writ of error on other grounds, the Supreme Court cannot pass upon the merits but only determines whether the judgment of the Appellate Court was erroneous.

2. PLEADING-pleading to writ of error is governed by common law rules. The suing out of a writ of error is the beginning of a new suit in which the assignment of errors takes the place of the declaration, and in pleading to the writ the common law rules of pleading apply, the joinder in error being, in effect, a demurrer to the errors assigned.

3. SAME-replications to pleas in bar of writ of error must raise issues of fact. Where the plaintiff in error's demurrers to the pleas of the defendant in error in bar of the writ are overruled and he elects to reply to such pleas, the replications must either traverse the facts alleged in the pleas or confess and avoid them, and he cannot, by such replications, question the sufficiency of the pleas as a matter of law.

4. SAME when Appellate Court does not err in denying leave to plead over. Where the plaintiff in error, after his demurrers to the pleas in bar of the writ are overruled, files replications at

tempting to again raise the question of the legal sufficiency of the pleas without attempting to raise any issues of fact, it is not an abuse of the Appellate Court's discretion to refuse to allow him to plead over after demurrers to his replications are sustained.

WRIT OF ERROR to the Appellate Court for the Third District;-heard in that court on writ of error to the Circuit Court of Christian county; the Hon. J. C. McBride, Judge, presiding.

JOHN E. HOGAN, JOHN G. FRIEDMEYER, and E. S. SMITH, for plaintiff in error.

Leslie J. TAYLOR, and CLAYTON J. BARBER, (JAMES M. TAYLOR, Of Counsel,) for defendant in error.

Mr. JUSTICE CRAIG delivered the opinion of the court:

On January 11, 1915, the defendant in error, Josephine Berry, recovered a judgment in the circuit court of Christian county against the plaintiff in error, A. F. Turner, a physician of that county, for the sum of $5000 for alleged negligence in reducing and setting a fracture of her left arm. Thereafter plaintiff in error sued out a writ of error returnable to the April term, 1915, of the Appellate Court for the Third District, to review that judgment. It further appears that on March 18, 1915, plaintiff in error was duly adjudged a bankrupt in the district court of the United States for the southern district of Illinois. Defendant in error did not join in error but instead filed three special pleas in bar of the action, based upon these bankruptcy proceedings, as constituting a bar to the writ of error in the Appellate Court. Plaintiff in error demurred to each of the pleas, and the Appellate Court sustained the demurrer as to the first plea and overruled the demurrer as to the second and third pleas. Thereupon plaintiff in error filed a replication to each of said pleas, to which defendant in error demurred. The court sustained the demurrer to each of the

replications, denied plaintiff in error leave to plead further, and entered judgment dismissing the writ of error and taxing the costs to the plaintiff in error. A writ of certiorari was allowed by this court, and the cause is now before us pursuant to the mandate of such writ.

It is assigned as error that the Appellate Court erred in overruling the demurrer to the second and third pleas, in sustaining the demurrer to the replications to such pleas, in denying plaintiff in error leave to plead over after sustaining the demurrer to the replications, and in rendering judgment on said pleas in favor of defendant in error.

The record contains a complete transcript of the record and proceedings in the circuit court and an assignment of errors calling in question the validity of certain of the proceedings had in that court, and plaintiff in error has submitted a brief on the assignment of errors going to the merits of the cause as well as to the proceedings had in the Appellate Court. It has frequently been held that the jurisdiction of this court is limited to a review of the judgment, order or decree of the court from which the appeal is taken, and that when an appeal or writ of error is prosecuted from the Appellate Court to this court, the only matter before this court for review in such proceeding is the judgment of the Appellate Court; also, that when that court does not pass upon the merits of the cause raised by the assignment of errors in that court but affirms the judgment, order or decree of the lower court, or dismisses the appeal or writ of error for causes other than upon a review of the merits of the cause, the only matter before this court is such judgment of the Appellate Court, and that if we are of the opinion it is erroneous, the only thing we can do is to reverse the judgment of the Appellate Court and remand the cause to that court for consideration on the merits. (Oswald v. Wolf, 126 Ill. 542; Troy Laundry Machinery Co. v. Kelling, 157 id. 495.) We are therefore not permitted

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to review the errors assigned going to the merits of the cause, although the errors assigned are broad enough to require us to do so if the merits had been passed upon by the Appellate Court.

No question is raised as to the propriety of the action of the Appellate Court in sustaining the demurrer to the first plea and no notice need be taken of it.

The second plea filed by the defendant in error alleges, in substance, that after the rendition of the judgment in the circuit court of Christian county, plaintiff in error on March 18, 1915, filed in the district court of the United States for the southern district of Illinois his verified petition and schedule in bankruptcy, wherein and whereby he admitted and recognized said judgment as a valid subsisting obligation against him, thereby releasing and waiving all right to have the same reviewed by writ of error or otherwise, and then set up parts of the petition, together with a verified schedule of his creditors, marked "Schedule A," which he states contains a full and true statement of all his debts and the names, places and residences of his creditors. That part of "Schedule A" referred to in the plea shows Josephine Berry, of Taylorville, Illinois, as a creditor under date of January 11, 1915, and that the nature of the indebtedness is a judgment rendered in the circuit court of Christian county for $5000 and costs amounting to $168.50, which the plea alleges is the same judgment involved in this proceeding. The third plea alleges substantially the same facts as the second as to the filing of the verified petition and schedule in bankruptcy in the district court of the United States for the southern district of Illinois, including in the schedule the judgment of defendant in error as part of the plaintiff in error's indebtedness, and further alleges that on March 30, 1915, the referee in bankruptcy called a meeting of the creditors of said bankrupt, of which meeting said plaintiff in error had due notice and which he attended;