Cook v. Wood

Decision Date30 April 1860
Citation1860 WL 6409,14 Peck 295,24 Ill. 295
PartiesISAAC COOK, Plaintiff in Error,v.DANIEL T. WOOD et al., Defendant in Error.a1
CourtIllinois Supreme Court

24 Ill. 295
1860 WL 6409 (Ill.)
14 Peck (IL) 295

ISAAC COOK, Plaintiff in Error,
v.
DANIEL T. WOOD et al., Defendant in Error.a1

Supreme Court of Illinois.

April Term, 1860.


ERROR TO COOK.

After a term has expired, a court has not discretion or authority at a subsequent term to set aside a judgment, but may amend it in mere matter of form, after notice has been given to the opposite party.

Application to change a judgment, after a term has closed, should be made to a court of equity; or resort must be had to a writ of error.

THIS action was commenced by Cook, against Wood and his sureties, the latter having been a deputy under the former as sheriff of Cook county.

A demurrer was sustained to the declaration at November term, 1856. The plaintiff had leave to amend his declaration, and the defendants leave to plead by Wednesday morning following.

At April term, 1857, a default was entered against the defendants, and reference was had to the court to assess the damages. The action was in debt on a bond. At the same term at which the default was taken, but forty-seven days afterwards, a judgment was rendered, and damages assessed on the breaches at $5,382.17.

At October term following, to wit, on the ninth day of November, a motion was made by the defendants to open the default, on affidavits, which the court, MANNIERE, Judge, presiding, allowed. The affidavits were to the effect, that it was supposed that the suit had been dismissed. The cause was again submitted to the same judge, who assessed the damages at $137.07.

The plaintiff below brought the cause to this court, and assigns for error:

[24 Ill. 296]

1. That the court allowed the defendants to file additional affidavits in support of their motion to set aside the judgment.

2. That the court set aside the judgment by default, and subsequent proceedings thereon had.

3. That the court sustained the demurrer of the defendants to the second and third breaches assigned in the narr.

4. That the judgment of the court below was for the defendants in error upon said demurrer.

W. T. BURGESS, for Plaintiff in Error.

E. C. LARNED, for Defendants in Error.

BREESE, J.

It is unnecessary to consider but one question presented by this record, as the determination of that, decides the case. The question is, had the Circuit Court power to set aside a judgment regularly entered by default against the defendants, on motion made for such purpose, at a term subsequent to the term at which the default was entered? We are free to...

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63 cases
  • Williams v. A. E. Staley Mfg. Co.
    • United States
    • United States Appellate Court of Illinois
    • 4 February 1980
    ... ... (See City of Park Ridge v. Murphy (1913), 258 Ill. 365, 101 N.E. 524; Walker v. Oliver (1872), 63 Ill. 199; Cook v. Wood (1860), 24 Ill. 295.) However, we have traced this rule to its source and have discovered that the case which is cited as the seminal ... ...
  • Cramer v. Illinois Commercial Men's Ass'n
    • United States
    • Illinois Supreme Court
    • 4 December 1913
    ... ... Oct. 28, 1913. Rehearing Denied Dec. 4, 1913 ... Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; William B. Scholfield, Judge. Suit by Dora Cramer against the Illinois Commercial Men's Association. A default judgment for plaintiff was set ... Cook v. Wood, 24 Ill. 295;Cox v. Brackett, 41 Ill. 222;Barnes v. Henshaw, 226 Ill. 605, 80 N. E. 1076;People v. Wilmot, 254 Ill. 554, 98 N. E. 973. The court, ... ...
  • Jansen v. Grimshaw
    • United States
    • Illinois Supreme Court
    • 15 June 1888
    ... ... Garner v. Crenshaw, 1 Scam. 143;Ryder v. Twiss, 3 Scam. 4;Cook v. Wood, 24 Ill. 295;Cox v. Brackett, 41 Ill. 222;Messervey v. Beckwith, Id. 452; McKindley v. Buck, 43 Ill. 488;Knox v. Bank, 57 Ill. 330;Lill v ... ...
  • Barnes v. Henshaw
    • United States
    • Illinois Supreme Court
    • 18 April 1907
    ... ... The order setting aside the sale from which this appeal was taken was entered at the September term, on October 8, 1906. This court held, in Cook v. Wood, 24 Ill. 295, that after a term had expired a court had no discretion or authority at a subsequent term to set aside a judgment, and could ... ...
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