Lehr v. Vandeveer

Opinion by the Court. In the court below, in an action of assumpsit, in the absence of a plea to the declaration, the court, when the plaintiff in error, who was defendant, was not present, without entering a default, impaneled a jury, assessed the damages of the defendant in error, as administrator, who was the plaintiff in the- action, and upon the verdict of the jury thus procured, rendered the judgment sought to be reversed. Upon the authority of Crabtree v. Green, 36 Ill. 278, it seems that the failure to take and enter the default, was a fatal error. This holding is not without the support of other authorities. 5th Amer. & Eng. Ency. of Law, 487. For the omission indicated, the judgment is reversed and the cause remanded.