Tolman v. Wieboldt Stores, Inc.

I must dissent to the majority opinion. The issues in a lawsuit are formed by the pleadings. In the instant case a motion of the defendant to strike the complaint on the ground that it did not state a cause of action was denied. Defendant thereupon filed an answer. 30 ILP Pleading § 232 summarizes the Illinois rule that failure of a complaint fully or sufficiently to state a good cause of action is a defect open to waiver, but a total failure to plead a cause of action is a fatal defect open to attack at any time before or after judgment. In the instant case the complaint, in my opinion, did…