144 Ill. App. 270 | Ill. App. Ct. | 1908
delivered the opinion of the court.
It is contended by the plaintiff that the court erred in overruling the motion for leave to amend the attachment in aid made before the trial. The ruling of the court upon that motion can only be presented by a bill of exceptions setting forth the affidavit, the ruling and an exception thereto. Motions and affidavits are not a part of a proper common law record: it is not sufficient that the clerk copy them into the transcript but they must be preserved with an exception to the ruling by a bill of exceptions. McFarland v. Claypool, 128 Ill. 397; 8 Ill. Cyc. Dig. 364.
On the trial at the close of plaintiff’s evidence the defendant moved to exclude the evidence in support of the attachment in aid. The plaintiff again moved for leave to amend by adding new grounds for the attachment. This motion was overruled, and is contained in the bill of exceptions, with an exception to the ruling. The court should be liberal in permitting amendments in the interests of justice; after an attachment in aid has been levied, an affidavit may be filed setting up additional grounds for the attachment, even after the trial has begun upon the plea traversing the original affidavit. Keith v. Ray, 231 Ill. 213; Bailey v. Valley National Bank, 127 Ill. 332. We are of the opinion that under the facts proven in this case the court should have permitted the amendment.
In writing up the judgment, the clerk wrote up the judgment for the defendant upon the attachment in one sentence, and the judgment for the plaintiff on the merits in the next sentence. This is followed by the sentence “thereupon the plaintiff having entered her exceptions herein prays an appeal from the judgment of this court to the Appellate Court in and for the Second District of the state of Dlinois, which said appeal is granted.” At the succeeding term of the court plaintiff moved to amend the judgment by changing “appeal from the judgment of this court” to “appeal from the judgments of this court,” and filed an affidavit in support of the motion and produced the original minutes of the judge. This motion the court allowed. The defendant took a bill of exceptions from that order, and has moved this court to strike out the amendment in the record, wherein the word “judgments” was substituted “judgment.” After the case was disposed of and the term adjourned the court could only correct clerical mistakes of its officers upon notice to the parties so as to make the record conform to the judgment of the court as shown by the memoranda of the court, without the aid of affidavits. Coughran v. Gucheus, 18 Ill. 390; Gage v. The People, 207 Ill. 377; 1 Black on Judg. 154. The two judgments follow each other in immediate succession and the plaintiff prays an appeal from the judgment. We think the prayer for an appeal raises every question that can properly be raised upon the record and the bill of exceptions. The bill of exceptions properly filed shows an exception to the ruling of the court on the plaintiff’s motion for a new trial, and to the judgment both upon the attachment and upon the merits. The plaintiff in appealing appealed from the entire judgment, treating it as a unit. The amendment is immaterial, and it is unnecessary to determine whether the amended record should be stricken out or not.
The évidence shows that the defendant was in Ottawa on the afternoon of the day the defendant received the injuries complained of; that he left Ottawa for his farm eleven miles from Ottawa, where he arrived that night so intoxicated that in driving from the highway through his gate he drove against the gate-post, smashing his road wagon and injuring himself; that the plaintiff was injured about eight o’clock that evening. Witnesses testify that the defendant drove his team at a reckless speed on the streets of Ottawa and against the buggy of the plaintiff. The plaintiff was injured, it may be not as seriously as she contends. Her carriage was damaged and it required several dollars to repair it. The physicians bill for treating her injuries amounts to $88.50. The defense of the appellee is an alibi. He claims that he left Ottawa an hour or two before the accident occurred. ■
The jury in finding for the plaintiff in the sum of one dollar, found that defendant was guilty of inflicting the injuries sued for. If the plaintiff was entitled to recover she was entitled to substantial damages. The damages allowed should be equal to the pecuniary loss sustained. There is a fixed measure of damages for the value of physician’s services and for the amount of damages to a carriage and team, of which proof was made. At common law new trials were not allowed upon the ground that the damages allowed by the jury in actions for torts were insufficient. But the modern rule is that a new trial may be granted where the verdict is grossly inadequate, for the same reasons as those governing where the verdict is excessive. Paul v. Leyenberger, 17 Ill. App. 167; Hackett v. Pratt, 52 Ill. App. 346; Hamilton v. Pittsburg, C., C. & St. L. Ry., 104 Ill. App. 207; Bourke v. Anglo-American Provision Co., 90 Ill. App. 225; 14 Encye. of Pl. & Pr. 764, and cases cited. A verdict for a grossly inadequate amount stands on no higher ground on legal principles than a verdict for an excessive or extravagant amount. The defendant is either liable or he is not liable. The jury having found he was guilty of the wrongs alleged, we can conceive of no theory upon which the verdict for one dollar can be sustained. The motion for a new trial should have been allowed, and the verdict set aside because of its absurdity. The judgment both on the attachment and on the merits is reversed and the cause remanded.
Reversed and remanded.
