Henrichsen & Rothschild v. Mudd & Hughes

Mr. Justice Breese delivered the opinion of the Court: This was an action of assumpsit on an account for goods, wares and merchandise sold and delivered. The plea was the general issue with a notice, in substance, of payment of the whole amount due, except the sum of twenty-five dollars, and that they will prove on the trial that one Grubb was “ a partner with the plaintiffs in the transaction and causes of action sued upon, and should have been a party defendant herein.” The record shows that at the April Term, 1862, the parties being present, on motion of the plaintiffs “ the plea of the defendants, as to the partnership of A. 0. Grubb with the plaintiffs,” was stricken from the files, and the court, after hearing the evidence, find that the defendants were indebted to the plaintiffs in the sum of three hundred and forty two TVo dollars, for which sum judgment was entered, together with the costs. The objections are: That the court struck out so much of the notice as referred to the partnership of Grubb; second, That the court had no right to try the cause without a jury except by consent, and that consent should appear on the record; and last, The judgment is not a judgment in an action of assumpsit, but in debt. The record nowhere shows a plea by the defendants that Grubb was a partner of plaintiffs. The notice makes that point, but at the same time, it is alleged in it, he should have been a party defendant. It is so inconsistent, it might well have been stricken from the files for that cause alone, and besides, it does not give the Christian or baptismal name of Grubb, and is, therefore, too indefinite and uncertain as a notice. But striking it from the files, did not' prejudice the defendants, as they could have shown the fact under the general issue. A notice was not necessary for such purpose, 1 Ch. PI. 476; Baker v. Jewell, 6 Mass. 660, Converse v. Symones, 10 id. 377; Wilsford v. Wood, 1 Esp. 178. The record shows the parties were present, and no objection was made to the trial of the cause by the court. Their consent must be presumed. Benjamin v. Babcock, 11 Ill. 28. As to the form of the judgment, we perceive no objection to it. The judgment is for a certain sum of money in dollars, being the amount of indebtedness found by the court. The word “debt” is not found in the entry of the judgment. In the case of Foster v. Jared, 12 Ill. 451, where, in an action of assumpsit, the entry was, “It is-considered by the court that the said plaintiff have and recover of the defendant the sum of one hundred and eight dollars and fifty cents debt, together with his costs, &c. It was held that this was not technically, a judgment in debt. The word “debt,” does not, of itself, make a judgment in debt, without it, the entry would have none of the distinctive features of a judgment in debt, and there would be no pretense for insisting that it was not a good judgment in assumpsit. The word must be considered as surplusage, &e. There certainly can be no pretense here that this is not a judgment in assumpsit, the term debt not being found in it. There being no such errors as have been assigned the judgment must be affirmed. />• Judgment affirmed,.