Haven v. Green

Breese, J. We do not think any of the points made by the plaintiffs in error are substantial. The facts do not show a variance; such was not the question before the court. The questions were those of identity merely. ■ Was the judgment rendered on the day named in the bond, and against the parties named as having made it ? Neither of the cases cited by the plaintiffs, have any bearing on the questions here. The case of Garfield, 22 Ill. 100, decides only, that the entry upon a justice’s docket was a judgment in bar; and the policy of the law forbids that parol proof should be admitted to show that the justice originally entered a judgment of non-suit, and afterwards changed it to a judgment in bar. The other case of Cunningham v. Wren, 23 ib. 64, decides that a court of law cannot reform a contract in which there is a mistake. No reform of this bond was sought, or was necessary. There were proper averments in the declaration to admit the proof of a misrecital of the day on which the judgment was in fact rendered. But really, taking the testimony of the justice of the peace who rendered the judgment, as to the fact, the judgment was really entered on the thirteenth, as the bond recites. He says the trial commenced on the twelfth, and was concluded on the thirteenth, and of course, judgment must have been entered on that day. The mistake was in his docket. This proof covers the third count in the declaration, which does not allege any misrecital or mistake. That the justice of the peace was a competent witness to prove what was sought to be proved by him, cannot be questioned. He may always be called to prove his docket and sustain it, and explain apparent mistaken entries upon it, and to identify the cause and the parties, as in this case. Upon the other point, that the issue tendered by the second plea, was not disposed of, we have to say that, though the demurrer to this plea was not formally sustained, yet it shows, that the defendant had leave to amend his plea, a liberty of which he did not choose to avail. Taking leave to amend a plea which is demurred to, ought to be held as equivalent, at least, to confessing the demurrer. But if it be not so, we have said, in the case of Parker v. Palmer, 22 Ill. 489, if an unanswered demurrer is on record, and the party filing it, goes to trial by consent, it will not be cause for reversal of the judgment. We do not think any of the grounds assumed by the plaintiffs are tenable, and accordingly affirm the judgment of the Circuit Court. Judgment affirmed.