Pierson v. Finney

37 Ill. 29

• Court: Illinois Supreme Court
• Decided: April 15, 1865
• Status: Published

Opinion

Mr. Justice Breese

delivered the opinion of the court:

The first objection taken in the case, that a change of venue was ordered on motion of the plaintiff, without any cause assigned, is not tenable, for the record shows the change of venue was by consent. It is competent for parties, at any and all times, to change the venue of a cause by consent, without any petition to the court or other proceeding than having the consent entered of record.

There is, however, one error in the record which must be fatal. The declaration is in assumpsit, wherein the damages claimed are laid at one thousand five hundred and fifty dollars, and there is a judgment for the. sum of one thousand eight hundred and forty-five 72-100 dollars, and not increased to that sum by accruing interest.

The affidavit for the attachment states the sum now due as fifteen hundred and fifty-six 35-100 dollars, and no more.

The rule is too well settled, that a party cannot recover beyond the damages laid in his declaration, no matter how many counts he may have in it. Pickering v. Pulcifer et al., 4 Gilm., 79; Rives v. Kumler, 27 Ill., 202; Wolcott, impleaded, v. Holcomb, 24 ib., 331.

The judgment is reversed and the cause remanded.

Judgment reversed,.