Klein v. Wells

Mr. Chief Justice Si-ieldon delivered the opinion of the-Court: This was an action of assumpsit. The declaration contained a special count upon a promissory note, and the common counts. There was a demurrer to the special count, and the general issue was pleaded to the common counts. The court below overruled the demurrer, defaulted the defendant and assessed the damages and rendered judgment therefor, without in any way disposing of the issue on the common counts. It was erroneous to assess the damages while the issue upon the common counts was undetermined. The correct practice required the court, when the defendant stood by her demurrer to the special count, to enter a judgment as by nil elicit on that count, and then empannel a jury to try the issues of fact upon the common counts, and on that trial to submit the assessment of damages, under the judgment by nil dieit, to the same jury, so that there might be but one judgment. The court, or the clerk under its direction, had no power to assess the damages, while there was an issue of fact pending in the cause. Keeler et al. v. Campbell, 24 Ill. 287, directly decides this. The judgment will be reversed and the cause remanded. Judgment reversed.