Elston v. Dewes

Breese, J". The time which has elapsed since the judgment was entered in this cause in the Circuit Court, the presumption which must obtain that it has been enforced by execution, under which important rights and interests are now involved, would incline this court to adhere to the rule established in the case of Sims v. Hugsby, Breese (new ed.), 414, wherein this court said: If too large a judgment has been rendered against the appellant in the court below, his remedy is by motion there. The error complained of is rather the mistake of the clerk than the error of the court. In a case like the present, the law has assigned to the clerk the duty of assessing the damages, and if, in the discharge of that duty, he should allow either too much or too little, the court under whose direction it is made, will, upon motion, correct it. To that court, then, and not to this, the application should be made. So also in Smith v. Lusk, 3 Scam. 411. The cases cited by plaintiffs in error are all cases in which the recovery exceeded the damages claimed in the declaration. Here, the damages are within the claim, and the cases do not apply. The case of Boyle v. Garter, 14 Ill. 49, was a case brought up by appeal, in which no right of the parties could be affected by reversing the judgment for an error in the computation of interest, and entering a judgment here. As to days of grace previous to the act of Assembly of 1861, it has never been conceded they could be claimed by the maker of a promissory note. The judgment must be affirmed. Judgment affirmed.