Dulle v. Lally

Mr. Justice Carter delivered the opinion of the court: Much of the argument of counsel for appellant is addressed to the alleged errors of the trial court in entering the original judgment by default, and in refusing to set aside the verdict and judgment on the motion of appellant. ¡Neither this motion, nor any showing made, nor any ruling of the court in respect thereto, appears in the bill of exceptions. ¡Nor does it appear from the face of the record, as written up by the clerk, that the court ever made any ruling on the motion, but after the lapse of many terms of court, upon motion of appellant, he was given leave to plead, “the judgment to stand,” and in pursuance of this order he did plead the general issue, went to trial, and the issue was found against him. In this state of the record the previous errors of the court, if any there were, were waived, and appellant can take no advantage by now assigning them here. We shall not therefore further consider this branch of the case. The original declaration was defective in including improper parties, which defect was apparent on its face, but this defect was cured by amendment. Five years after appellant had been allowed, on Ms motion, to plead, and had pleaded, the general issue, and after the trial of this issue had been entered upon before the jury and testimony heard, the appellant, by other counsel then representing him, asked leave to file an additional plea of the Statute of Limitations. No showing was made why the application for leave to file the additional plea was not sooner made. There was no error in denying the motion. Fisher v. Greene, 95 Ill. 94; Dow v. Blake, 148 id. 76. The record shows no material error in the rulings of the court in the admission or exclusion of evidence, and plaintiff’s assignments of error in that regard cannot be sustained. It is contended further, that after the jury had rendered their verdict for §1950 and plaintiff had remitted from the original judgment §263.33, thus reducing-it to the amount as found by the jury, the court erred in not entering judgment upon the verdict for §1950 as of the date of entering the order, and erred in entering instead its final order that the balance of the original judgment rendered upon default more than six years before, that is, to the amount of §1950, (that being the amount of the second verdict,) “stand in as full force and effect as at the time of the rendition thereof, and that the plaintiff have execution against the defendant for said judgment,” with costs, etc. The effect of this order was to leave in full force the original judgment to the amount of §1950, with interest thereon from the date of its rendition, which interest, in the lapse of time, had accrued to the amount of upwards of §700. Whatever might be said of the practice, the proceedings subsequently to the first judgment were a matter of grace to the defendant, upon Ms own motion, and cannot be regarded as having the effect of setting aside the original judgment. The effect of what was done at the request of the defendant was to give him an opportunity to establish a defense pro tanto or entire, and to have the judgment abated to the extent the court and jury might find it was too large; and we do not think, in view of his waiver of the alleged errors in the entering of the original judgment and the acquiescence in the order of the court, which the record shows was made on his motion, in permitting that judgment to stand, he can be now heard to complain that the court directed, in its final order, the original judgment to stand and be enforced, less the amount remitted therefrom, thus making it conform to the finding of the jury, instead of entering a judgment on the verdict as of the date of its rendition. The case in this respect is not entirely, but is in some respects, analogous to Hall v. First Nat. Bank, 133 Ill. 234. There was no item for interest embraced in the verdict so as to make appellant pay double interest. Finding no, error of which appellant can complain, the judgment of the Appellate Court will be affirmed. Judgment affirmed.