35 Ill. App. 496 | Ill. App. Ct. | 1890
This case was here before, under the title of West v. Carter, on appeal from a judgment adverse to the present appellee, in a suit on the bond which constitutes the cause of action. The judgment of the Superior Court was reversed on the appeal, and the case is reported in 25 Ill. App. 245. The judgment of this court remanded the case, with directions to the Superior Court to enter judgment for the plaintiff, the appellee here, for the penalty of the bond sued on, in debt and damages for the amount of the judgment entered thereon, etc.
Such direction was given inadvertently by this court. The case being at law, no directions should have been given, and if the appellee in that appeal had called the attention of this court to such improper part of the judgment, during the term at which it was entered, it would have been our duty to have corrected the judgment in that respect, and to have modified the opinion.
The case was, after being remanded, redocketed in the Superior Court, and a notice given by the appellee of a motion that judgment be entered in accordance with the directions of this court. On the day set to hear the motion, the Superior Court took up the case, and, as it appears from the record, a trial was in fact had before the court. The appeal bond sued on was regularly introduced in evidence; also the transcript of the justice, showing the amount of the judgment rendered before him, and a witness was sworn and testified to the amount of interest accrued, and from this evidence the court Ifound the amount of the debt and damages and entered the proper judgment.
Though the parties may have supposed that the direction of this court was being followed, what in fact was done was to proceed with a trial before the court without a jury, and appellant’s bill of exceptions shows every step taken which is ordinarily taken on such a trial, and has preserved the evidence introduced, with all the objections entered. If appellant desired a trial by jury and had objected to the trial by the court, it would have been error to have denied him a jury; but as he was present by his counsel, and failed to interpose any object tion of that kind, he waived his right to have the • case submitted to a jury. Phillips v. Hood, 85 Ill. 450. The refusal of the court to allow the appellant to file the plea offered is assigned as error. The plea was bad, in substance, and the court was therefore right in denying leave to file it. We adhere to the opinion in West v. Carter, supra, that an adverse judgment can not be collaterally attacked in an action at law, on the ground that the action in which the judgment was rendered was based upon a gambling transaction. We do not agree with counsel that the Supreme Court have announced a different doctrine in West v. Carter, 129 Ill. 249. That case simply holds the doctrine, before announced, that such a judgment may be set aside in equity.
There is nothing in counsel’s contention that the court could not take the case up in vacation. It is not shown that there was any order adjourning the term. And by the law a term commences on the first Monday of each month. There is no error shown in this record which is available to appellant to reverse the judgment, and the same must therefore be affirmed.
Judgment affirmed.
