Race v. Isaacson

124 Ill. App. 196, 1906 Ill. App. LEXIS 16

• Court: Appellate Court of Illinois
• Decided: January 4, 1906
• Docket: Gen. No. 12,206
• Status: Published

Opinion

Mr. Justice Brown

delivered the opinion of the court.

We do not see how the plaintiff in error can secure the relief she seeks by this writ of error. It is true that in the judgment order shown in the record, it is recited “that the cause being called for trial, comes the plaintiff to- this suit by her .attorney, and issues being joined, it is ordered that a jury come, etc.,” and nothing is said of the defendant’s coming. On this the plaintiff in error bases the representation in argument that the hearing was in her absence and ex parte which counsel say was explained by the fact of his (counsel’s) sickness. We doubt whether the omission specifically to recite the coming of the defendant when the jury Avere called, is equivalent to an assertion of the record that a defendant who is shoAvn by it to have been served with process and to have pleaded to the declaration, was not present at the trial.

If the showing that the trial was without the personal presence of the defendant was essential to the establishment of the errors alleged by her, it seems to us that the recitals of the common law record should be supplemented by the affirmative statement of a bill of exceptions to that effect.

Unless it does appear that such trial was in the absence of defendant, it is evident that the case of the plaintiff in error must fail, for in that event it must be presumed that, having knowledge of the amendment of the declaration, she proceeded to trial without objection and without asking leave to plead further or differently. This would certainly be fatal to any right'to object thereafter on the ground of a want of opportunity to do so. Wright v. Lessee, 1 Peters, 165; Chambers v. Beahan, 57 Ill. App., 285.

But assuming that the -position of plaintiff in error is well taken in this regard, and that the record shows an ex parte trial, it does not follow that she can now effectively complain of the allowance of the amendment or the trial without an order of specific notice of said amendment to her or a rule on her to plead again.

We" need not pass on what the rights of the plaintiff in error might have heen had the court below allowed a material amendment, changing the cause of action and the real questions to be decided, and involving some obvious inferrence that the defendant in the cause might wish to change her pleadings in answer, and then had, in the personal absence of the defendant, proceeded to trial without requiring any notice to her of the amendment. Whether such a situation would have involved an abuse of discretion which would have justified our interference with the judgment, is not the question here, for the amendment was formal. It was not material in any significant sense.

The lots in question alleged to have been warranted were simply curtailed of a superfluous description. Something is suggested in the argument of the plaintiff in error of a mistake in the original description and of more than one subdivision called Irving Park, but there is nothing in the record of this sort. Even the copy of the instrument sued on, the warranty deed, is not before us so that we can take cognizance of it. It is no part of the pleadings and is not shown by a bill of exceptions. It is very plain that by striking out the section numbers and the townships and ranges, and leaving the same lots and blocks as before, located as before, “all in the original subdivision of Irving Park,” no change was made which required any new .pleading or to which the plea on file was not just as fully an answer as it was to the original declaration. Under these circumstances, in which no right to plead de novo would have existed even if it had been claimed, it was not error to proceed to trial under the presumption which the law attached to the original appearance of the defendant in court, that she was constantly present until the judgment, and had notice of all that took place. Chicago & Eastern Ill. R. R. Co. v. O’Connor, 119 Ill., 586; Milwaukee Ins. Co. v. Schallman, 188 Ill., 213; Chicago and Alton R. R. Co. v. Murphy, 198 Ill., 462; Niehoff v. The People, 171 Ill., 243; Sidway v. Marshall, 83 Ill., 438.

As to the second point made hy plaintiff in error, that the judgment was excessive in amount, greater than claimed hy the declaration or than could have been supported by proof, it is plain that we cannot entertain it. The ad damnum of the declaration was $5,000. The allegations were sufficient to show a liability. We have no means whatever, in the absence of a bill of exceptions, of knowing what evidence was presented which led the court to instruct the jury to find the issues for the plaintiff, or which led the jury so to find the issues and to assess the plaintiff’s damages at $4,000.

But we must make all reasonable and necessary intendments and presumptions that they were sufficient to support the verdict and judgment.

The judgment of the Superior Court must be and is affirmed.

Affirmed.