Cairo v. Holbrook

• Citation: 1874 WL 8840,72 Ill. 419
• Parties: CAIRO AND ST. LOUIS RAILROAD CO.v.HENRY HOLBROOK.
• Decision Date: 30 June 1874
• Court: Supreme Court of Illinois

72 Ill. 419

1874 WL 8840 (Ill.)

CAIRO AND ST. LOUIS RAILROAD CO.

v.HENRY HOLBROOK.

Supreme Court of Illinois.

June Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

Messrs. G. & G. A. KŒRNER, for the appellant.

Messrs. C. W. & E. L. THOMAS, and Mr. WILLIAM H. UNDERWOOD, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This was assumpsit, brought by appellee against appellant, to the October term, 1872, of the St. Clair circuit court, which term began the fourth Monday of the month. The summons was served and the declaration filed in time for that term, the latter containing only the common counts for work and labor, money paid, laid out and expended, and money found due upon account stated.

On the third Thursday of the term, and pursuant to a rule of the court, the defendant's default was taken, for want of plea, etc., and a writ of inquiry was awarded by the court to assess the damages. On the fifth Tuesday of the same term, being the 26th of November, 1872, the court heard evidence as to damages, which were assessed by the court at $9500, for which judgment was rendered. At the March term, 1873, the cause was re-docketed, upon defendant's motion, whereupon the defendant's attorneys, upon ten days' previous notice given to the plaintiff, made a motion, based upon the minutes of the court made at the previous October term, to have the record of said cause so amended as to show the true proceedings in said cause, viz: that, at said October term, the hearing upon the assessment of damages was set for the seventh Tuesday of that term, but such hearing was, in fact, had on the fifth Tuesday of the term. Upon the hearing of that motion, the defendant's attorney produced the court docket for the October term, which, as appears by the bill of exceptions, contained these minutes: “Set for 7 T. 3d. The defendant called writ of inquiry 5 T. Evidence heard, damages assessed at $9500. Judgment for plaintiff for that sum and costs.”

These were the only minutes or basis for the proposed amendment of the record. But the bill of exceptions proceeds as follows: “And it is admitted by both parties that the words ‘set for 7 T.’ are in the hand-writing of the clerk of said court, the rest of said minutes being the hand-writing of the judge. It is also admitted that the clerk, at the beginning of the said term, set all the cases on the common law side of said docket of said October term on the first day of said term, and that ‘7 T’ stands for seventh Tuesday.”

The court, upon such minutes and said admissions, overruled the motion to amend the record, to which defendant's counsel excepted, and, preserving said matters by bill of exceptions, appealed to this court from such order.

The only question presented is, whether there was such error in overruling defendant's motion to have the record amended as above stated, under the circumstances shown, as that this court should reverse the order denying such motion.

By our practice, the defendant, not having entered its appearance, was not entitled to notice of the execution of the writ of inquiry, so that if no time was fixed for its execution by order of the court, the defendant, if it would contest the amount of damages, would be under the necessity of keeping watch and being ready whenever the plaintiff, with the consent of the court, chose to have them assessed. But if, on the other hand, the court, by order, set a particular day for such assessment, which was the seventh Tuesday of the term, and then, while such order was in force, assessed them on the fifth Tuesday, such a practice would tend to the surprise and injury of the defendant--as, if a cause in equity were set for hearing on the second Tuesday of a particular month, and the court should, without further order, permit the complainant to bring on the hearing on the first Tuesday. The defendant's rights were not wholly foreclosed by the default. While the default admits every material allegation of the declaration, still, it does not admit the amount of damages. The defendant, on the execution of the writ of inquiry before the court, could not introduce evidence tending to show that plaintiff had no cause of action, but would have the right to cross-examine plaintiff's witnesses and introduce witnesses on its part on the question of damages, ask for instructions as to the proper measure of damages, and preserve the rulings of the court by bill of exceptions. Chicago and Rock Island Railroad Co. v. Ward, 16 Ill. 522; Cook v. Skelton, 20 Ill. 107.

Under this view, it is apparent...