Grand Lodge of Ancient Order of United Workmen v. Bagley

60 Ill. App. 589, 1895 Ill. App. LEXIS 347

• Court: Appellate Court of Illinois
• Decided: December 2, 1895
• Status: Published

Opinion

Mb. Justice Waterman-

delivered the opimtoet of tub Court.

This case is now here for the third time.

The record at this time presented is substantially like that upon which the judgment of this court was given November 17, 1892. The opinion published in 4G Ill. App. 411, sets forth the reasons actuating the court, at that and this time, upon all questions save that of interest upon the debt, recovered upon the last trial.

Interest not having been specifically claimed in the declaration, the action of the court in rendering judgment for $2,000 debt, and also for $1,217 damages, was in accordance with the rule announced in Marsh v. Wright, 14 Ill. 248; Mayer v. Hutchinson, 2 Gilman 266, and Williams v. Bank of Illinois, 1 Gilman 667.

In the last mentioned case, the judgment being entered for an aggregate sum, including debt, interest and dairiages, without distinguishing either, the Supreme Court corrected the error by itself entering a judgment for $595 debt and $155.69 damages, with the costs of the court below.

The plaintiff was entitled to an allowance of interest. Supreme Lodge Ancient Order United Workmen v. Zulilke, 129 Ill. 298.

¡No objection was made in the court below to an entry of judgment for a sum exceeding the ad damnum of the declaration; there the irregularity could easily have been corrected by amendment. Such objection can not be made for the first time in an Appellate Court. Grand Lodge Ancient Order of Workmen, 50 Ill. App. 101-108; I. & St. L. R. R. Co. v. Estes, 96 Ill. 473; Utter v. Jaffray, 15 Ill. App. 236; Same v. Same, 114 Ill. 480; Metropolitan Accident Ass’n v. Froiland, 59 Ill. App. 522; Tomlinson v. Earnshaw, 112 Ill. 311.

As to the use of an ad damnum in an action of debt, see Gibbs v. French, 30 Ill. App. 292.

The judgment of the Superior Court is affirmed.