Meyer v. Ross

119 Ill. App. 485, 1905 Ill. App. LEXIS 140

• Court: Appellate Court of Illinois
• Decided: April 5, 1905
• Docket: Gen. No. 11,592
• Status: Published

Opinion

Mr. Justice Freeman

delivered the opinion of the court.

It is urged first as ground for reversal, that the amended declaration does not state with certainty and accuracy whether there are one, two or three plaintiffs, that it was therefore bad on general demurrer, and that- it will not support the judgment. If there was uncertainty in the respect stated, it must, we think, he deemed aided by the default and judgment. The plaintiff Ross sues in trover “for himself and as trustee.” The declaration is carelessly drawn, but where the intendment of the declaration is clearly discernible from the language used, mere clerical and grammatical errors are not sufficient to render it obnoxious to general demurrer. Penley v. Record, 66 Me. 414-17; Wood v. Decoster, 66 Me. 542-545; Monmouth Mining Co. v. Erling, 148 Ill. 521-534; Bacon v. Schepflin, 185 Ill. 122. It is true the plural “plaintiffs” seems; to be used several times. This may have been a mere grammatical error or it may have been owing to some confusion, of mind in the pleader, induced by the fact that the names: of several beneficiaries are unnecessarily set, forth. The trustee having the legal title or right of possession should sue in his own name and the record as a whole indicates, that he did so. There was no necessity of naming a cestuique trust. Union Bank v. Barth, 74 Ill. App. 383-387 Idem, 179 Ill. 83-86. The description of parties as trustees is surplusage. Odd Fellows v. McAllister, 153 Mass., 292-297. The demurrer was overruled and so far as appears properly so, notwithstanding the mixing of “plaintiff” and “plaintiffs.” It was a .general demurrer and called no attention to the particular errors which are now urged as fatal. If it had they could have been corrected in the-trial court. It does not appear that attention of that court was ever called to them. The damages were assessed and the judgment entered in favor of the “plaintiff.” There is. no uncertainty in these findings.

It is urged that the verdict is informal, in that it is in the form of an action in assumpsit- instead of trover. The-default of the defendants having been taken, the jury were-called merely to assess damages. Every material and trayersable fact alleged in the declaration was admitted by-the-default, and all that was required of the jury was an assessment of damages. City of Chicago v. English, 97 Ill. App. 594-601. This they made in express terms,- and the rest of the verdict while superfluous did not affect the assessment of damages, and as finally recorded is correct in form.

It is claimed that there was an undisposed of demurrei' on file when default was taken. The record does not support this contention.

Finding no reversible error the judgment of the Superior-Court must he affirmed.

Affirmed.