Gebbie v. Mooney

Bailey, J. This was an action of assumpsit brought by the appellee against the appellant. The trial before the court and jury resulted in a verdict and judgment in favor of the appellee for $2,500. The record contains no bill of exceptions and therefore the evidence heard at the trial is not before us* The original declaration consisted of a special count, alleging the non-performance by the appellant of an express contract between the parties and also the common counts. It is urged that the special count presents no cause of action for which a recovery can be had at law. We do not deem it necessary to determine the sufficiency of that count, as the common counts are unquestionably good and are sufficient to sustain the verdict and judgment. Sec. 57 of the Practice Act provides that “ whenever an entire verdict shall be given on several counts, the same shall not be set aside or reversed on the ground of any defective count, if one or more of the counts in the declaration be sufficient to sustain the verdict.” See, also, Bradshaw v. Hubbard, 1 Gilm. 390; Snyder v. Gaither, 3 Scam. 91; North v. Kizer, 72 Ill. 172; Waugh v. Suter, 3 Ill. App. 271; Payne v. Donegan, 9 Ill. App. 566. It is urged that the cause of action attempted to be alleged in the special count is not one to which the common counts are applicable, and that for that reason those counts should be disregarded. There is no force in the suggestion. If the evidence had been preserved, and if it had appeared that it tended to prove no cause of action for which a recovery could be had under the common counts, those counts doubtless might have been disregarded. -The evidence, however, not being before us, we can not presume that any portion of it was applicable to the special count, but may rest upon the presumption that it proved the causes of action alleged in the common counts and those only. The defendant filed three pleas, each purporting to answer the entire declaration, viz.: 1, non assumpsit; 2, a special plea alleging a partial failure of the consideration of the contract set out in the special count of the declaration ; 3, a plea of set-off. Issues of fact were duly taken upon the first and third pleas, and to the second plea the plaintiff filed a special demurrer, which was sustained by the court, and the sustaining of said demurrer is assigned for error. Various grounds of demurrer were urged, but one only need be considered. The matters alleged in the plea answered only the special count, while the plea professed to answer the whole declaration. This was a manifest defect in the pleading for which the demurrer was properly sustained. Moir v. Harrington, 22 Ill. 40 ; American Ins. Co. v. Holly, 81 Ill. 353. Prior to the commencement of the trial, the defendant, by leave of the court, tiled two additional pleas alleging fraud and circumvention in procuring the execution by the defendant of the contract set out in the special count. These pleas also professed to answer the whole declaration, and a demurrer thereto was interposed by the plaintiff. During the progress of the trial the plaintiff, by leave of the court, filed an additional count setting out the same contract alleged in the special count of the original declaration, and a further contract between the parties supplemental thereto, and alleging the non-performance of said contract as modified by the supplemental contract. In ’the original record brought to this court it did not appear that any disposition had been made of the demurrer to the additional pleas, or that any issue had been taken upon the additional count. So far as appeared, however, the trial was entered upon and proceeded to verdict without any objection by the defendant that the demurrer was undisposed of or the count unanswered. Since the record was brought to this court the plaintiff, after due notice to the attorneys for the defendant, has applied to the cpurt below for the entry by that court, mono pro tumo, of certain orders which it is claimed were omitted by an error of the clerk. From a supplemental record now filed it appears that, in response to said application, the court below, on examining the records in the cause, found that said orders were made by the court, but by an omission of the clerk were not entered upon the record, and the same were ordered to be entered nuno pro tuno, as of the dates at which they were made. From said orders it now appears that the demurrer to the additional pleas was sustained on the same day on which it was filed, which was prior to the trial, and that after filing of the additional count and while the trial was progressing, leave was granted to the defendant, on his motion, to have his pleas filed to the original declaration stand as his pleas to the additional count. We are of the opinion that, even in the absence of the supplemental record, there was no error of which the defendant can complain. Being present at and joining in the trial without objection, while the demurrer was undisposed of and the additional count unanswered was, as we are inclined to think, a waiver by him of such irregularity. Strohm v. Hayes, 70 Ill. 41, aud authorities cited. But, if this were otherwise, the supplemental record shows that the demurrer was properly disposed of and proper issues formed upon the additional count. There can be no doubt that courts of record have power? after the term at which judgment is rendered, upon due notice to all persons interested, to amend their records so as to correct the errors and mistakes of their officers and make the record conform to the facts. Coughran v. Gutchens, 18 Ill. 390; Dunham v. South Park Commissioners, 87 Ill. 185. The court found that the orders in question had been made, but had been omitted from the record by the mistake of the clerk. It will be presumed, as the contrary is not shown, that the court was in possession of sufficient memoranda or other legal evidence as to what the actual proceedings in court were, to warrant such finding. It was proper then that an order should be entered making the record speak the truth, and causing it to conform to the proceedings of the court as they actually took place. < There being no error in the record the judgment will be affirmed. Judgment affirmed.