Miles v. Goodwin

35 Ill. 53

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

Opinion

Mr. Chief Justice Walker

delivered the opinion of the Court:

It is insisted that there are such defects in the writ and its service on Bradford S. Miles, as renders the judgment erroneous. We deem it unnecessary to examine these various objections, as they were cured, if they ever existed, by his appearance to the action. After a default was entered, he appeared and moved the court to set aside the default, which motion was allowed. He then entered a motion to dismiss the suit, which was overruled. By making these motions he fully appeared to the action, and if so, it could make no difference whether there was a defective writ or defective service, as his being in court rendered a writ and service unnecessary. If a defendant enter his appearance to a declaration, all attorneys know, that a judgment is binding although a writ was never issued or service had. The object, and only object, of the writ is to bring the party into court, and if he voluntarily enters his appearance, the court has complete jurisdiction of his person.

It is likewise insisted that the court erred in assessing the damages on the default, without the intervention of a jury. The act creating the Court of Common Pleas of the city of Aurora, establishes the same rules of practice for that court as are provided for the Kane Circuit Court. (Spec. Laws 1857, p. 392, sec. 1.) By reference to the act regulating the practice in the Kane Circuit Court (Scates’ Comp. 639), it will be seen that the court is authorized to assess damages on judgments by default, without a jury. This statute is decisive of this question. By its provisions, the power is expressly conferred. No error is discovered in the record, and the judgment of the court below is affirmed.

Judgment affirmed.