Iglehart v. Morris

34 Ill. 501

• Court: Illinois Supreme Court
• Decided: April 15, 1864
• Status: Published

Opinion

Mr. Justice Breese

delivered the opinion of the Court:

The judgment in this ease was entered on a cognovit, in the Cook Circuit Court. The record was brought here by writ of error, and a reversal sought on the ground that no affidavit was filed of the execution of the note or warrant of attorney, and that the judgment exceeds the amount of the note and interest and attorney’s fee. On the last point, it will be observed the amount of the judgment is within the ad damnum, in the declaration.

In such case we held in the case of Plats v. Turrill et al., 18 Ill. 273, that on a writ of error the judgment will not be reversed. So it was held in Thompson v. Turner, 22 id. 389, that a judgment by default might be rendered against a defendant regularly served with process, for an amount greater than is stated in the summons, if within the damages claimed in the declaration. But if it was irregular, application should have been made in the Circuit Court, where the judgment was rendered to correct it.

As to the other point, the amended record shows that the execution of the power of attorney to confess the judgment was duly proved. It is, therefore, not like the case of Durham v. Brown, 24 Ill. 93, cited by plaintiff in error. The judgment in that case was confessed in vacation before the clerk, and the proper papers were not filed before him.

We do not perceive any error in the record, and accordingly affirm the judgment.

Judgment affirmed.