11 Ill. 116 | Ill. | 1849
This was an action of debt upon a bail bond. Boyd alone was served with process." Judgment by default was entered against the ££ defendants,” for the debt, in the declaration mentioned, and the record then recites that, ££ because the debt is unknown to the Court, it is ordered that the clerk make an assessment,” which he did, and reported the same to be two hundred dollars ; whereupon the Court adjudged, ££ that the plaintiff recover of and from the defendant the sum of two hundred dollars aforesaid, together with his costs.”
This judgment was clearly erroneous. It was error to enter a judgment by default against both defendants, when only one had been served with process ; and the final judgment, although against but one defendant, leaves it uncertain which.
It was also erroneous to direct the clerk to assess the debt. The default admitted the debt, which was the penalty of the bond, and an assessment should have been directed of the damages, occasioned by the breach of the condition of the bond, which would be the amount of the recovery in the suit, wherein the bail bond was given.
This judgment, which was rendered at the November term, 1848, of the Sangamon Circuit Court, wras amended at the August term, 1849, of the same Court, so as to be a judgment against Boyd alone, and was also made formally correct; but the amendment was made on motion of the plaintiff below, without notice to the opposite party, and cannot, therefore, avail him, upon the authority of the case of O’Conner vs. Mullen, decided at the present term.
The judgment of the Circuit Court is reversed and the cause remanded. Judgment reversed.