delivered the opinion of the Court.
Appellant, as plaintiff below, brought suit against appellee in trespass guare clausum freg.it. Among other pleas appellees filed, by leave of court and upon the day of the trial, the following plea:
After reciting entry and taking of goods and sale under provisions of a. chattel mortgage, as being the supposed trespasses complained of, the plea proceeds: “And defendants further say, that after said sale they brought suit against plaintiff in Circuit Court to recover from him the expenses of the custodian fees, and for the care of said property, from taking possession to date of sale, and for other expenses of making said sale, and for amount paid by them for insuring said property while they had possession of it, and to recover the balance due upon their said debt, in which said plaintiff was served with process, and appeared and pleaded the general issue to the whole of said declaration, and filed an affidavit that he had defense to whole of the demand, and also filed plea of set-off for goods, wares and merchandise claimed by him to have been returned to them; that issue was joined upon said pleas, and thereupon defendants recovered judgment against plaintiff for the causes of action aforesaid, on December 23, 1893, for $14,234. That the defense which plaintiff set up to the claim of these defendants in said last mentioned case, was the-alleged unlawful taking of said goods and chattels under the chattel mortgage; and defendants say' that said judgment is in full force and unsatisfied, and not reversed or set aside, and defendants are ready to verify,” etc.
Appellant demurred to this plea by general and special demurrer. Demurrer was overruled and judgment for appellees followed. Error is assigned in that the trial court should not have allowed the filing of the plea in question during the pendency of the trial, and without imposing conditions as to costs; and in that the demurrer should have been sustained on the ground of duplicity and on the ground of the insufficiency of the plea as a plea of former adjudication.
The order allowing the filing of the plea without imposing conditions was a matter within the sound discretion of the trial court, and we can not say that such discretion was abused. It was not claimed that appellant was taken by surprise, nor was there application by him for a continuance, or for further time in which to meet the defense under this plea. Great Western Tel. Co. v. Lowenthal, 154 Ill. 261.
If it be conceded that the plea was obnoxious upon upon special demurrer for duplicity, yet that ground of objection, and the error in that behalf assigned, must be regarded as waived by appellant by his brief here.
We think the plea is sufficient as a plea of former adjudication. It alleges that the entry and taking under the provisions of a chattel mortgage, are the supposed trespass complained of, and in effect, that such entry and taking were in issue, and were adjudged to have been lawful in the former suit.
“Where some controlling fact or* question material to the determination of both of the causes has been adjudicated in the former suit by a court of competent jurisdiction, and the same fact or ‘question is again at issue between the same parties, its adjudication in the first will, if properly presented, be conclusive of the same question in the later suit, irrespective of whether the cause of action is the same in both suits or not;” Wright v. Griffey, 147 Ill. 496. See, also, L. N. A. & C. R’y Co. v. Carson, 169 Ill. 247; Allen v. Haley, Id. 532.
We are of opinion, therefore, that the trial court did not err in overruling the general demurrer.
The 'judgment is affirmed.