Windett v. Hamilton
| Decision Date | 30 September 1869 |
| Citation | 52 Ill. 180,1869 WL 5408 |
| Parties | ARTHUR W. WINDETTv.JAMES HAMILTON. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.
This was an action of assumpsit, brought in the circuit court of Cook county, by Arthur W. Windett, an attorney at law, against James Hamilton, to recover for legal services. The cause came on for trial at the September term of said court, and a default was taken and final judgment rendered, for the sum of $1000. Subsequently, and at the same term of that court, the defendant entered his motion to vacate the judgment, and set aside the default. The court entered the motion, but postponed the hearing until the following October term. At the latter term, the court allowed such motion, and ordered the judgment and default entered at the preceding term to be vacated and set aside.
It appears from the record in this case that the declaration and precipe for summons were filed, returnable to the August term of that court; that the cause was continued for want of service; that an alias summons issued, returnable to the September term, at which term the plaintiff obtained leave to file his amended declaration.
The alias summons was served, and return thereof properly made; but no return was made upon the original summons. Pending the motion to set aside the default, the plaintiff entered his motion for leave to the sheriff to make his return of “not found” upon the original summons, which motion was refused. It also appears from the record, that the damages claimed in the alias summons, were five hundred dollars, while in the amended declaration they were one thousand dollars. At the October term, the defendant entered his motion to quash the alias summons, and dismiss the suit, on the ground, that there was no return made upon the original summons in the cause, and upon the ground of variance between the summons and the declaration, in the amount of damages. The court granted the motion, dismissed the suit, and rendered judgment against the plaintiff for costs.
The plaintiff brings the record to this court on appeal, and assigns for error:
1st. That the court erred in setting aside the default at a term subsequent to the term at which the default was taken, and judgment rendered.
2nd. That the court erred in refusing to allow the officer to make his return of “not found” upon the original summons, in quashing the alias writ, and in dismissing the suit. For these errors this court is asked to reverse the judgment.
Mr. ARTHUR W. WINDETT, pro se.
Mr. JOHN J. MCKINNON, and Mr. R. H. FORRESTER, for the defendant in error.
The first point made by appellant is, that the court below had no power to set aside the judgment by default at the October term, the judgment having been entered at a previous term. That the court had not this power is settled by repeated rulings of this court, Morgan v. Hay, Breese, 126; Cook v....
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