Windett v. Hamilton

Mr. Chief Justice Breese delivered the opinion of the Court: The first point made by appellant is, that the court below had no power to set aside the judgment by default at the October term, the judgment having been entered at a previous term. That the court had not this power is settled by repeated rulings of this court, Morgan v. Hay, Breese, 126; Cook v. Wood, 24 Ill. 294; McKindley v. Buck, 43 Ill. 488. But this is not such a case. Here the default was taken at the September term, and the motion made at that term to set it aside, which motion was continued for discussion to the next term, and then it was allowed. The motion having been entered at the September term, the cause was kept in court and remained on the docket. In the cases cited, the causes were finally disposed of, and were not on the docket at the subsequent term. They had passed beyond the control of the court. There had been final judgment entered. Cox v. Brackett, 41 Ill. 222; Messervey v. Beckwith, ib 452. Here it was not so. The court, at the October term, had the same power over the cause that it had at the September term, the motion attaching to it at that term, and the cause remaining on the docket subject to this motion. Another point made by appellant is, that the court erred in refusing to allow the sheriff to make a return on the first writ; There was no affidavit in support of the motion. It was a motion addressed to the discretion of the court, nothing appearing on which to base it, and the refusal of the court to allow it can not be assigned as error. The remaining point is, that it was error to dismiss the suit, on quashing the alias summons. The suit was dismissed for a variance between this summons and the declaration. What other course could have been taken ? This was an objection which could be reached by plea in abatement, and equally by motion, the defect appearing on the face of the papers. Cruikshank v. Brown, 5 Gilm. 75; Holloway v. Freeman, 22 Ill. 197. Plaintiff might have saved his case had he asked leave to amend. This he failed to do. Thompson v. Turner, ib. 389. We see no error in the record and must affirm the judgment. Judgment affirmed.