Utter v. E. S. Jaffray & Co.

Mr. Justice Scott delivered the opinion of - the Court: Only two errors are assigned on the record in this cause: First, the Appellate Court erred in sustaining the motion to amend the declaration; and second, in affirming the judgment of the circuit court. As" respects the first error assigned, it is sufficient to say, as the record shows was the fact, the Appellate Court did not sustain the motion to amend the declaration, but refused it. In support of the second error assigned, it is suggested the judgment in the circuit court was for a larger sum than the ad damnum in the amended declaration filed by plaintiffs, on leave given by the circuit court for that purpose,—and that, it is said, was error, for which the Appellate Court should have reversed the judgment of the circuit court. A certified copy of the original declaration filed, on leave given, in the Appellate Court, shows the ad damnum was $3000. That is a sum larger than the judgment rendered. It further appears in the affidavit filed for a capias, plaintiffs claimed defendants were indebted to them in the sum of $2578.75, and in the writ issued, the sheriff, on arresting defendants, was directed to take bail in the sum of $3000, with sureties. In that way defendants were put on notice of what plaintiffs claimed, and for that reason could not be, and were not, taken by surprise when the court rendered judgment against them for the sum it did. But waiving this view, it is fatal to the position now insisted upon by defendants, that they took no exceptions in the trial court to the judgment rendered against them. No motion for a new trial or in arrest of judgment was made, nor did defendants save any exception to the decision of the court. Had they done so by motion for a new trial, or in arrest of judgment, or by any exception to the decision of the court, stating that the finding of the damages was in excess of the ad damnum in the amended declaration, the error could have been, and no doubt would have been, corrected at once, under the statute, on such terms' as the court might have deemed equitable and just. But nothing of the kind was done. In Parsons v. Evans, 17 Ill. 238, it was held, unless the decision was excepted to, and that exception saved by a bill of exceptions, error could not be assigned on the finding of the court on the evidence. The doctrine of that case has been followed in many subsequent eases, and in the recent case of James v. Dexter, 112 Ill. 489, where the cases are cited. This view is conclusive as to the questions made, and the judgment of the Appellate Court will be affirmed. Judgment affirmed.