Niehoff v. People

Mr. Chief Justice Phillips delivered the opinion of the court: An action of assumpsit was brought by Prank J. Degan, against Joseph P. Goergen, Michael W. Ryan and Conrad L. Fiehoff, who were served with summons on March 8, 1895. A declaration containing the common counts only was filed on March 22, 1895. On March 26 leave was granted to amend all papers so as to make the suit in the name of the People of the State of Illinois, for the use of Prank J. Deg'an, and on the same day leave was granted to file an additional count instanter. This additional count was a count in debt, arid alleged Prank J. Degan was a minor, and that Joseph P. Goergen was appointed his guardian, and executed a bond with Conrad Niehoff and Michael W. Ryan as sureties, which bond was duly approved, and after setting forth the liability under the bond a breach is alleg'ed that certain moneys came to the hands of the guardian which he converted to his own use and failed to turn over to the plaintiff. After the filing of this count, and on April 1,1895, a default was entered against Goergen and the plaintiff in error. The common counts were afterward withdrawn. Michael W. Ryan pleaded to the declaration, and subsequently an amended declaration, which amounted to an additional count, was filed by Began and issue found thereon. This latter declaration was substantially the same as the former, the only material difference being, it was averred in the first amended declaration that money came to the hands of the guardian from the proceeds of rents and sale of real estate, and in the latter it was averred that money came to the hands of the guardian as the proceeds of moneys and profits of the personal estate. Under the issues made on these pleadings a trial was had with a jury, who found adversely to Ryan. The verdict of the jury was, at the request of counsel for defendant m error, against all of the defendants, and the assessment of the damages was placed at $1226.48. From that judgment Ryan prosecuted an appeal to the Appellate Court for the First District, where the judgment was affirmed, and then prosecuted an appeal to this court, where the judgment of the Appellate Court was affirmed, and is reported as Ryan v. People, 165 Ill. 143. Niehoff, Ryan’s co-defendant below, has brought the case to this court by writ of error. The record in this case is the same as in that case. The guardian’s bond was in evidence, as also an entry on the record of the probate court, which entry is set out in full in the Ryan case, by which it appears a final account of the guardian was presented, and there was found due the ward, at the time of entering that order, a total sum of $1191.51. That order was held admissible as evidence in the Ryan case, and was conclusive upon the guardian and his sureties unless impeached for fraud or mistake. (Ryan v. People, supra; Gillett v. Wiley, 126 Ill. 310.) This evidence was sufficient to authorize a recovery under either of the amended counts of this declaration. The default of the plaintiff in error admitted all matters well pleaded, and the evidence authorized a judgment for the amount found due. It is contended that where an amended declaration setting up a different cause of action is filed after service of summons, and no appearance by one of the defendants, no judgment can be entered upon such declaration without a new summons or notice. It is also contended that where the amended count states a new cause of action at the same term at which the original count was filed, the statute of this State which provides for filing the declaration ten days before the term at which judgment may be entered precludes a right to a judgment on such declaration. It is further contended that the defendant in the original declaration having been served but not appearing, and a default entered, it is error to enter a judgment without any notice or rule upon the defendant to plead to the amended declaration. The several contentions of plaintiff in error cannot be sustained. By section 23 of the Practice act (Rev. Stat. p. 778,) it is provided: “At any time before filing judgment in a civil suit, amendments may be allowed on such terms as are just and reasonable, * * * changing the form of the action, and in any matter, either of form or substance, in any process, pleading or proceeding which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought.” Section 25 of the same act provides that “no amendment shall be cause for a continuance unless the party affected thereby, or his agent or attorney, shall make affidavit that in consequence thereof he is unprepared to proceed to or with the trial of the cause at that term.” By the service of summons the plaintiff in error had notice of the pendency of the cause of action against him, and it was his duty to take notice .of the law, which he is presumed to know, and under this presumption he is compelled to take notice of the fact that by leave of court the plaintiff might make any amendment necessary to sustain the cause of action for which his suit was intended to be brought. A defendant is compelled to know and take notice of the fact that the cause in which he is summoned to appear at a particular term of court may be continued from term to term, and under the law he must be in court, and no special notice is required of such continuances, or of any order made at a subsequent term to which the cause may be continued. In the absence of rules of court to that effect, no special notice is required of any amendment of any part of the record of the current term, as the presumption of law is that by reason of the service of summons the defendant is constantly present in court, and therefore has notice of all that takes place. (Massachusetts Mutual Life Ins. Co. v. Kellogg, 82 Ill. 614.) Neither is it necessary, in the absence of rules of court to that effect, for the defendant to have notice of every amendment. By the service of summons "he is brought into court, where it is his duty to be and appear until the case is disposed of, and he is entitled to no further service or notice under the practice in this State. If an amendment is made during the current term and before the final judgment, it is his duty to take notice of the same without any additional notice or summons. The judgment. of the Appellate Court for the First District is affirmed. Judgment affirmed.