| Ill. | Apr 15, 1861
It is urged that the court below erred, in enter ing a default assessing damages, and rendering judgment, whilst a motion to quash the capias remained undetermined. Had this motion gone to the jurisdiction of the court over the person of the defendant, it is obvious that it would be error to render final judgment before the motion was disposed of; but as'this motion only related to the mode by which he was before the court, a different question is presented. Had the motion prevailed, the effect of quashing the capias would have been to discharge the bail, and let it stand for, and answer the office of a summons. The determination of this motion, one way or the other, could not affect the right of appellee to proceed to a trial of the cause. It was neither in abatement or in bar of the action. Its determination could only affect the steps which might be taken for the collection of any recovery which might be had. It only questions the right of appellee to hold appellant in custody, in satisfaction of the judgment, or his bail liable, if his body should not be surrendered in execution, but it by no means questions the right of recovery. Whilst it may be true that it would have been more strictly in accordance with the better practice, to dispose of all such motions before a trial on the merits, still we cannot hold that it is an error, for which the judgment should be reversed. The determination of the motion, after the entry of the judgment, did the appellant no wrong, nor deprived him of any right, and he has, therefore, no reason to complain.
By the act regulating the practice of the court below, it had the right, upon entering a default, to hear evidence on the assessment of damages, without empanneling a jury for the purpose. And when a default is entered, and the damages have been assessed by the court, the same presumptions must prevail, that the necessary evidence was heard to support the finding, as if it had been made by a jury.
It is urged that the court erred in rendering judgment for a larger sum than was claimed in the affidavit to procure the capias. The affidavit states that appellant was indebted in the sum of $5,921.86, with interest, for money had and received of the appellee, in August, 1857. This affidavit does not limit the indebtedness to the sum specified, but it alleges that it was the sum named, with interest from August, 1857. Upon computing interest on that sum from the date named, until the judgment was rendered, the amount will be found to exceed the finding of the court. But the presumption is, that the evidence indicated what sum bore interest, and that the court found in accordance with the evidence.
The judgment of the court below is affirmed.
Judgment affirmed. ,