Wells v. Mathews
H. W. Wells and Stephen Martin v. Wallace Mathews
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Summary
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Opinion of the Court
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Opinion per Curiam. This was an action on assumpsit to recover on a promissory note for $200. The declaration contained a special count on the note and the common counts. The praecipe and declaration laid the damages at $500, while the writ only demanded $200. The summons was issued December 20, 1895, and served December 27, 1895. On January 8, 1896, the defendants filed the plea of the general issue. On January 27, 1896, the court, without noticing the plea, had the defendants called and defaulted, and, without the intervention of a jury, assessed the plaintiff’s damages at $221.55, and rendered judgment against them for that amount. It is assigned for error that the court rendered judgment for a greater amount than the damages claimed in the writ, but as this question was not raised in the court below, and no exception was saved to the action of the court in this behalf, we hold the objection can not be raised for the first time in this court. Had the objection been made in the trial court, an opportunity could have been given to amend the writ so as to correspond with the praecipe and declaration, in which the damages were laid in a sum greater than the amount of the judgment. Utter et al. v. Jaffray & Co., 114 Ill. 470 ; Met. Acc. Assn. v. Froiland, 161 Ill. 40 .
It is also assigned for error that the court disregarded the plea, entered a default and assessed the damages thereon while the plea was on file and undisposed of. In this we think there was manifest error.
It has been frequently held that where a plea has been filed, unless it has been stricken from the files or otherwise disposed of, the court is powerless to enter the default of the defendant. Mason v. Abbott, 83 Ill. 445 ; Parrott v. Goss, 17 Ill. App. 110 ; Faurot v. Park Bank, 37 Ill. App. 322 ; Sammis v. Clark, 17 Ill. 398 .
For this error the judgment will be reversed and the cause remanded.
Reversed and remanded.
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