Waterman v. Bristol

6 Ill. 593

Opinion

The Opinion of the Court was delivered by

Shileds, J.

*

On the fifth day of May, 1842, Bristol ancT McKnight, defendants in error, commenced a suit on a promissory note before Albert Neely, Esq., a justice of the peace of Boone county, against Hiram Waterman, the plaintiff in error, who, being served with process, and failing to appear, judgment was rendered against him on the tenth day of May, for forty seven dollars and fifty six cents debt, and one dollar and seventeen cents cost. From this judgment Waterman appealed to the Circuit Court of Boone County, and at the September term of said Court, 1842, Bristol and McKnight asked and obtained leave to file an additional account. By consent of the parties, the cause was tried by the Court, and judgment rendered in favor of Bristol and McKnight against Waterman, for the sum of sixty three dollars and ninety one cents, and costs of suit. Waterman prosecuted his writ of error to this Court, and assigns for error, the decision of the Circuit Court allowing plaintiffs to file an additional account.

When an appeal is taken to the Circuit Court, from the judgment of a justice of the peace, that Court does not review or revise the decision of the justice. It enters upon the trial of the cause de novo. It investigates the whole case, as if it had never undergone a previous investigation, and by the thirty fifth section of “ An Act concerning Justices of the Peace and Constables,” approved February 3, 1827, it is directed to “ admit such amendments of the papers and proceedings as may be necessary to a fair trial of the cause upon its merits.” The authority to amend both papers and proceedings, evidently embraces not only the appeal bond, and also the original accounts filed in the cause. This power, however, which is from its very nature discretionary, should be exercised with great caution, and only to do substantial justice between the parties. The fourth section of “ An Act to amend the several Laws in relation to Appeal Bonds, and trial of Appeals,” approved March 2,1839, corroborates this view of the subject. It directs that after the Circuit Court obtains jurisdiction of the persons, the simple inquiry is, whether the justice had jurisdiction of the subject matter of the suit, and if so, the Court shall then proceed to try the cause upon its merits, without any reference to the form or service of the summons, or the proceedings before the justice. It is difficult to educe any other meaning from this legislation, than a wish to dispense with every formal and technical objection, which might, in any degree, obstruct the investigation of little neighborhood controversies on their naked merits.

The case of Brookbank v. Smith, 2 Scam. 78, is regarded as an authority against this position. In that case, the Circuit Court, on appeal, refused to allow plaintiff to file additional accounts. This was the exercise of a discretionary power, and could not be assigned for error. Upon a new trial being granted, the plaintiff offered to give evidence of the accounts which he had thus offered to file, and which the Court had previously rejected. This the Court very properly refused. If the Court had the power to refuse leave to file additional accounts, it had the power to reject evidence in relation to such accounts. This Court decided the case correctly, but the ground upon which the decision is based in the written Opinion, is certainly calculated to give rise to the impression that neither party could, in any case, be permitted to file additional accounts in the appellate Court.

The law which requires the parties to a suit before a justice, to bring forward and consolidate all their demands which are capable of consolidation, or be forever barred from a recovery of the same, is evidently intended to prevent a multiplicity of suits for what may be embraced in one. This object is an excellent one, and can be fully attained by allowing either party upon just and equitable terms to file additional accounts, before trial. It would be a very harsh rule, of law to deny a party the benefit of a just demand merely because," by some oversight, he might happen to omit it in his original account. There must be some salutary discretion exercised in such cases, and this discretion should be exercised in such a way as to do substantial justice between the parties. When an amendment is allowed, the other party may, if necessary, obtain a continuance, and that at the costs of the party obtaining the amendment. We are unable to see how any injury can possibly result from such a course. This was the view taken of this question in Webb v. Lasater, 4 Scam. 547. So far as the plaintiff is concerned, the judgment, if in his favor, cannot exceed the original demand indorsed on the back of the process. Dowling v. Stewart, 3 Scam. 193. The only benefit, therefore, which he can derive from the filing of additional accounts, is to rebut accounts which the defendant may unexpectedly bring forward, and against the original demand, in order to reduce it. There is nothing on the record of the case now under consideration to show the amount of the original demand as indorsed on the back of the summons, and in the absence of any thing being shown to the contrary, we are bound to presume that the judgment of the Circuit Court did not exceed such demand.

The judgment of the Court below is affirmed with costs.

Judgment affirmed.

Justices Browne, Thomas, and Catón did not sit in this case.