Lucas v. Farrington

Breese, J. We cannot know whether the Circuit Court decided correctly or not, in refusing to dismiss the suit for want of a bond for costs, the affidavit on that motion not having been made a part of the record, by bill of exceptions. Nor does the record show that any exception was" taken to the decision of the court overruling the motion. This objection, therefore, is not properly before this court. Selby v. Hutchinson, Adm'r, 4 Gilm. R. 326. The fact that the clerk has copied the affidavit into the record, does not make it a part of the record. McDonald v. Arnout, 14 Ill. R. 58. The demurrer to the replication to defendant’s plea of misnomer of plaintiff, was properly overruled, for the replication tendered a proper and triable issue. That a party is known as well by one name as by another, makes a good replication to such plea, even if the Christian or given name is made up of initials only. He may, if he chooses, risk an issue on that. It was proper to enter an interlocutory judgment by default for that part of the debt not answered by plea, and then to take issue on the matter of fact alleged in the plea. No other course could be pursued without working a discontinuance. 1 Chit. Plead. 509. The action was debt, and the verdict of the jury finds only a part of the debt due, for which the court renders judgment. Hence there was no necessity, as is urged, of specifying what part was debt, and what part damages. It is all debt, and so found by the jury, without any damages. The last error assigned, that there are two judgments, one by default for $72.55, and one for $186.00, the amount found by the jury, is not true in fact. There is but one judgment, and we must presume, on the default being taken for the portion of the debt not answered, the same jury that tried the issue, assessed the damages on the default, and incorporated them into their finding on the issue, making them a part of the verdict, and for which the court rendered judgment. This we must presume the jury did do, there being no evidence to the contrary. This being so, we cannot discover wherein any error has been committed. We must presume the verdict of one hundred and eighty-six dollars was made up of the amount not answered to, and of the balance due on the note, and included the whole indebtedness, as there is nothing in the record to the contrary. Our first impressions- were, there was error in the proceedings, and accordingly we pronounced a judgment of reversal; but more mature consideration has satisfied us there is no error, and we avail of the act of the last session of the General Assembly, authorizing us to correct inadvertent or mistaken judgments, by now directing that the judgment be entered as affirmed. Judgment affirmed.