Donaldson v. Copeland

Ms. Justice Wateeman delivered the opinion of the court. A motion having been made at the term during which the judgment was entered to set it aside, the court had jurisdiction to, at the following term, vacate the judgment. Windett v. Hamilton, 52 Ill. 180. We do not understand counsel for plaintiff in error to seriously contest this principle, but that their insistence is rather, that what is known as the common law record, fails to show the making, during the April term, of a motion to set aside; therefore the court had no jurisdiction to set aside at the subsequent May term. The record does not, as counsel say, show that after judgment nothing further was done during the April term; the record as existing at the close of the April term failed to show that during that term anything was done after the entry of the judgment. If, as counsel urge, the court had no jurisdiction on the first day of the May term to decide the motion and set aside the judgment, we do not understand why the plaintiff, eight terms thereafter, was moving to have the vacating order set aside; and when this motion was denied, presented a bill of exceptions. In most vigorously contested jury trials there are motions and orders of many kinds that are not a part of the common law record and are never made a part of the record; yet rights are acquired thereunder. Aside from the presumptions arising from what is made to appear in this cause, wé are of the opinion that the plaintiff waived all error, if such there were—which we bv no means intend to intimate—in vacating the judgment. The plaintiff acquiesced in such action by thereafter obtaining a rule on the defendant to plead, filing a demurrer, replications, rejoinders and similiters. As plainly as possible she acknowledged the jurisdiction of the court. Many terms thereafter she made and pressed a motion to set aside the vacating order. Consensus tollit errorem. The writ of error is dismissed.