Ellinger v. Caspary

Mr. Justice Windes, after making the above statement, delivered the opinion of the court. It is claimed, first, that the case was improperly tried on the short cause calendar; second, that the case was tried against appellant’s objection that the issues were not made up; and third, that there is a variance between the declaration and the proof of the judgment declared upon. As to the first contention, we are unable to tell whether there was error or not. There is nothing whatever in the abstract to tell us when or by what means the case was placed upon the short cause calendar. We are not required to look in the record for this information, nor will we search the record for what should be shown by the abstract. Gibler v. City of Mattoon, 167 Ill. 18. In the absence of anything in the record showing to the contrary, the court having jurisdiction of the person and subject-matter, it will be presumed that its proceedings were regular and in conformity to the law. As to the second contention, so far as we can tell from the abstract, the case was at issue when the trial was had. Besides, it appears that by agreement between the attorneys a jury was waived, cause submitted to the court, the defendant reserving the objections and exceptions theretofore raised and made to the trial of said cause upon the short cause calendar. The objections theretofore raised in that regard were that the cause was not at issue when the same was placed on the short cause calendar, and was not at issue when the notice to place the same upon the short cause calendar was served. While it may have been true, though it does not so appear, that the issues were not complete when the notice was served, nor when the case was placed upon the short cause calendar, it may also have been true that when the objection was made the issues were fully made up. In any event, it fails to appear that appellant made any objection to the trial because the issues were not complete, and he cannot now insist upon the objection when it was not made in the trial court. By going to trial without making the objection that the issues were not complete, he waived any error in that regard. The third contention is not tenable. The amended declaration sets up a judgment against appellant alone. The proof shows a judgment against appellant on personal service, and a /judgment on service by publication against William J. Barth, and was sufficient to justify the judgment against appellant alone. It was no judgment as to Barth on which there could be a recovery against him, but was a judgment against appellant. Smith v. Smith, 17 Ill. 482; Sim v. Frank, 25 Ill. 127; Vail v. Iglehart, 69 Ill. 335. We can not say that it appears that this appeal was prosecuted for delay, as was held in Ry. Co. v. Nash, 166 Ill. 528, where it appeared that the identical question presented had been decided by the Supreme Court against the same appellant, and represented by the same counsel before that appeal was taken, and therefore we will not allow statutory damages against appellant. The judgment is affirmed.