97 Ill. App. 492 | Ill. App. Ct. | 1901
delivered the opinion of the court.
Among the errors assigned is the following:
“ Said Circuit Court of Cook County erred in entering the order of January 3, 1900, defaulting said James Pease for failure to plead to said declaration as amended.”
We are of the opinion that the error is well assigned. The record as now presented, including the amendment by which the judgment is shown to have been taken by default, discloses that the default was taken when the defendant’s pleas were on file and undisposed of. These pleas were apt pleas, responsive to the plaintiff’s declarar t-ion, and they set up a complete defense to the declaration, both as it was originally framed and as it was amended. Therefore, there was error in entering a default and proceeding to a judgment upon the default while these pleas were undisposed of. It was not necessary thát new pleas should be filed to the amended narr. The amendment presented no new matter requiring further answer. The. amendment was not necessary at all, for it merely operated to set up specifically the title of the plaintiff below, which title was alleged in general terms and sufficiently in the original na/rr. The original narr. was sufficient in this behalf. 1 Chitty on Pl. (9th Am. ed.), star page 380-385 ; Harvey v. McAdams, 32 Mich. 472 ; Nudd v. Thompson, 34 Cal. 39 ; Person v. Wright, 35 Ark. 169.
In Harvey v. McAdams, supra, the action was trover, and the court, by Cooley, J., said:
“ The objection to the admission in evidence of the chattel mortgage under which the plaintiffs claimed the property, has no force. The ground of it was that the declaration counted upon a conversion of plaintiffs’ property without setting out the nature of their interest, and was not calculated to inform the defendants of what they would be expected to meet. But no declaration in trover undertakes to notify the defendant of the precise nature of the plaintiffs’ title, or what are the evidences of it. These are matters of evidence merely.”
In Nudd v. Thompson, supra, the action was replevin, and the court said :
“ Whatever doubt may exist as to the true result of the pleadings in this case comes of the fact that the plaintiffs have presented their case in two parallel sets of allegations. In the first set the plaintiffs aver that the title to the goods, and the right of possession, are in them, and that the property is wrongfully detained by the defendants; in the second set particular grounds upon which the title and right to possession are claimed to be in the plaintiffs, and on which the detention of the goods is claimed to be unlawful, are set forth in detail. There can be no question, however, that the more general statement was sufficient for all ■ the purposes of pleading, nor that a denial of it put the plaintiffs upon their proof as a prerequisite to judgment.”
In Persons v. Wright, supra, the action was replevin, and the court said :
“ It was not necessary for plaintiffs to have shown in their complaint the means by which they acquired title. It would have sufficed to allege their ownership, general or special; their right to the possession; and that defendant unlawfully detained it after demand, or was holding and using it as his own adversely to their right. These were the material allegations necessary to show cause of action and all that the defendant was required to answer.”
The pleas on file' were a sufficient answer to any declaration in replevin. The pleas being a sufficient answer to the declaration as amended, it was not necessary that the defendant below should plead further, and it was therefore error to enter his default. McAllister v. Ball, 28 Ill. 210; Milwaukee Ins. Co. v. Schallmann, 188 Ill. 213; Ridgely Bank v. Fairbank, 54 Ill. App. 296; Cozzens v. C. H. P. B. Co., 64 Ill. App. 569; Wright v. Lessee, etc., 1 Peters, 165.
In Milwaukee Ins. Co. v. Schallman, supra, an action was brought upon an insurance policy. After verdict the defendants moved in arrest on the ground of insufficiency of the declaration. The plaintiff asked and obtained leave to amend. Defendants objected and asked leave to plead over. The original declaration alleged at its end :
“ Yet the said defendants, although often requested, and though more than sixty days have elapsed since the delivery of said proofs of loss, have not paid the said money, or any part thereof, to the plaintiff, but to pay the same have neglected and refused,” etc.
The amendment allowed was by inserting before this clause the words:
“ And plaintiff alleges that the delivery of said proofs of loss, as aforesaid, was more than sixty days before the commencement of this actiop.”
Mr. Justice Magruder, speaking for the court, said :
“ Any defense which could have been made to the declaration as amended, could have been presented under the plea of general issue which was already filed. Appellant did not show, nor does the record reveal, that it had any defense which was inadmissible under the general issue. It is only where the plaintiff is permitted to amend his declaration in a material respect that the defendant should be permitted to file additional pleas to the amended declaration.”
In Wright v. Lessee, etc., supra, the court said:
“ The authorities cited by the learned counsel do not, we think, support his last position, that the judgment is erroneous because a plea was not filed to the new count. They prove unquestionably that upon the amendment being made to the declaration by adding a count, the defendants had a right to plead de novo/ they prove nothing more.
They do not show that the defendants in such cases must necessarily plead de novo; or that judgment may be entered by default for want of a plea to the new count, if before the amendment he has pleaded the general issue. We think the practice is well settled to the contrary. The defendant has a right, if he will, to withdraw his former plea and plead anew either the general issue or any further or other pleas which his case may require; but he may, if he will, abide by his plea already pleaded, and waive his right of pleading de novo. His failure to plead and going to trial without objection are held to be a waiver of his right to plead, and an election to abide by his plea, and if it in terms purports to go to the whole action, as is the case , in this instance, it is deemed sufficient to cover the whole. declaration, and puts the plaintiff to the proof of his case on the new as well as on the old counts.”
But it is urged by the defendant in error that the Circuit Court had no jurisdiction to amend the judgment, and that inasmuch as before amendment the judgment appeared by the record to have been based upon verdict, we should not treat it now as a default judgment. In this behalf it ' ■is argued that the order amending the judgment is void, first, because no notice of the application for such order was given to the defendant in error; and, second, because there appears to have been no memoranda or memorial paper by which the court could amend its judgment after the term.
¡Notice was not given to defendant in error in person, but it appears that this motion was made and allowed when the attorneys of record, representing both litigants, were before the court, at the conclusion of the hearing of the motion to vacate the judgment. Mr. Thompson, who had acted both as attorney in fact and attorney at law for the plaintiff below, was the proponent of the motion to vacate. After it had been overruled, and when the attorney for the defendant presented his motion to amend the judgment, Thompson undertook to limit his' appearance for the plaintiff so that it should include an appearance for him to urge the motion to vacate, but to exclude any appearance for him to resist the motion to amend the judgment. We think that the plaintiff was sufficiently represented. Thompson was his attorney of record. His appearance as such had not been withdrawn, and no other attorney had been substituted of record for him. Although it was after judgment, a notice to him was a sufficient notice of a motion to correct the record upon which the judgment was based. Lusk v. Hastings, 1 Hill. 656; Drury v. Russell, 27 How. Pr. 130; Miller v. Miller, 37 How. Pr. 1; Read v. French, 28 N. Y. 285; Doane v. Glenn, 1 Colo. 454; Merriam v. Gordon, 22 N. W. Rep. 563.
Lusk v. Hastings, supra, seems to be a leading case upon the question of when the authority of the attorney to represent the litigant ceases by reason of the termination of the litigation. It would seem from the doctrine announced in that case, that while the general rule is to the effect that with the procuring of the final judgment the services of the attorney under his retainer and his authority as attorney of record come to an end, yet in proceedings to attack the final judgment by motion to modify or vacate, the attorney of record is still presumed to be authorized to represent the litigant, and notice to him will be held to be sufficient notice to the litigant. The court said:
uThe power, of the attorney seems sometimes to be retained, even after the entry of final judgment on the record, and beyond the purpose of merely superintending the collection of the debt. If a writ of error be brought against his client, it has long been the practice to require that he should be served with notice (2 Sel. Pr. 365), though this, with us, is now regulated by statute. (2 R. & S. 498, 2d Ed., Par. 57, 8; Vid. 2 Tidd’s Pr. 1068, Am. Ed. of 1807.) So the entry of final judgment by the defendant’s attorney may be irregular. What objection is there, in such case, to serving him with notice of a motion to set it aside % It is his business at least to see that a regular judgment in favor of his client should be perfected and sustained when the court have awarded in his favor. Having conducted the suit, he is best able to resist all attacks upon the judgment. Indeed, his own regularity is generally drawn in question by the proceeding. For a similar reason he is the proper person to be served with notice, when the judgment, or any other proceeding in which he has participated, is sought to be set aside on the ground of merits, as in this instance, the rule for arrest.”
It is also urged by the learned counsel for defendant in error that the Circuit Court had no power to amend the judgment because no memoranda or memorial paper appeared by which the amendment could be made.
A bill of exceptions was preserved by the plaintiff in error by which we are informed as to various documents, files, wrappers, minute book, docket, etc., which are recited in the order as having been considered by the court, the nature and contents of which are shown in an affidavit filed in support of the motion.
Without discussing the nature and sufficiency of these papers and books, so far as they are shown by .the affidavit, to serve as memoranda upon which to base the amendment of the judgment after the term, it is enough to say that their sufficiency has been called in question only by the plaintiff in error. He alone preserved a bill of exceptions upon the proceedings to amend .the judgment. He alone assigns errors, and he assigns none on the amending of the judgment. He now says to the court in his brief:
“ There can be no doubt that the court below properly amended this record so as to recite correctly the facts on which the judgment was based. The record of the court itself showed the mistake, and what the record correctly written should have been. There is no dispute that the judgment was in fact based upon a default entered for want of compliance with the rule to plead to the declaration as amended.”
■ Defendant in error, having assigned no cross-errors, is not in a position to question the sufficiency of showing made in support of the motion to amend the judgment or the propriety of such amendment.
The judgment, being based upon a default which was improperly entered, must be reversed and the cause will be remanded.
Reversed and remanded.
