Wheatley, Buck & Co. v. Chicago Trust & Savings Bank

Mr. Justice Baker delivered the opinion of the court: Appellant raises several objections to the validity of the judgment rendered by the Superior Court. First—It is contended that the trial court erred in overruling appellant’s motion to strike the case from the short cause calendar, in conformity with a rule of that court to the effect that “no cause shall be noticed for trial until the same is at issue.” Said motion was based upon two grounds: the one, that the issues were not made up before the case was placed upon the calendar; and the other, that the affidavit for placing it there was insufficient. After the cause was placed upon the short cause calendar there were numerous continuances, some at the instance of appellant, and any objection that might have been made to the affidavit was thereby waived. The cause was at issue when placed on the calendar, but after many of the continuances the additional count to the declaration was filed. This did not have the effect of taking the cause from the calendar, and at the December term, 1895, it was again continued on motion of appellant, which was a recognition that it was properly on the calendar. The supposed objection was waived. Second—It is objected that the declaration did not allege that the plaintiff was a corporation. The objection was raised at the close of the plaintiff’s case, and an appropriate amendment was at once made. But there is another answer to this objection. An averment that plaintiff was a corporation was not necessary, nor was proof of the fact required unless the existence of the corporation was challenged by a plea of nul tiel corporation. (McIntire v. Preston, 5 Gilm. 48; Morris v. Trustees of Schools, 15 Ill. 266.) The declaration began: “The Chicago Trust and Savings Bank, plaintiff in this suit, by John G. Henderson, its attorney,” etc. The plaintiff’s name could not be taken to be that of a natural person, and implying, as its name does, that it is a legal entity, it must have been that of a corporation. Third—It is assigned for error that incompetent evidence was admitted in behalf of the plaintiff. Counsel says that this assignment of error has reference to the testimony of the witness Tolman. But what questions or what answers were improper he does not point out. Said witness was produced for the purpose of proving the insolvency of Skinner, the maker of the notes. He was a competent witness for that purpose, and his testimony, being uncontradicted, was sufficient to prove that fact and that a suit against Skinner would have been unavailing. But one objection was made to any question propounded to the witness, which was, that it called for a conclusion. The objection was not well taken. Fourth—Objection is made because the judgment exceeds the ad damnum. The ad damnum when the suit was begun was laid at §2500, and was not increased when the additional count upon the last described note was filed, hence the judgment exceeds the ad damnum by nearly §400. This, indeed, was error. But the error cannot now be taken advantage of. The objection must be considered as waived by reason of its not having been made in the trial court. Had that court’s attention been called to the matter the objection could readily have been obviated. (Metropolitan Accident Ass. v. Froiland, 161 Ill. 30; Utter v. Jaffray, 114 id. 470.) Counsel, on the contrary, made no mention of the error in either the motion for a new trial or the motion in arrest of judgment. There is no reversible error in the record, and the judgment of the Appellate Court will be affirmed. Judgment affirmed.