delivered the opinion of the court:
This wаs an action of assumpsit commenced by the appellee against the appellant in the superior court of Cook county to recover the value of a shipment of merchandise delivered by Spaulding & Co., as consignors, in the city of Chicago, Illinois, of whom the appellee had purchased said merchandise, to the appellant, as a common carrier, for shipment to the appellee, as consigneе, at El Paso, Texas, the place of residence of the appellee. The declaration contained two counts, which, in substance, are as follows:
The first count charges that the defendant, at the time of the making of the promise hereinafter referred to, was a common carrier of goods and chattels for hire from the city of Chicago, Cook county, Illinois, to El Paso, Texas; that the defendant being such common carriеr, the plaintiff, on or about the 21st day of December, 1906, at Chicago, Illinois, at the request of the defendant, caused to be delivered to defendant certain goods and chattels of the plaintiff, to-wit, one hair-brush, one comb, two colognes, two puff-boxes, one ring, two pencils, one cigar-cutter, one cigar case, one bridge set, one purse, one brooch, one matchbox and one card case, of the value of $538, to be taken care of and safely carried by defendant, as such carrier, from the city of Chicago, Illinois, to El Paso, Texas, and there safely delivered by the defendant for the plaintiff; that in consideration thereof and of certain reward to defendant in that behalf, the defendant, at Chicago, Illinois, promised the plaintiff to take care of the said goods and chattels and safely carry the same from Chicago, Illinois, to El Paso, Texas, and there deliver the same for the plaintiff ; that although the defendant, as such carrier, then and there received the said goods and chattels for the purpose aforesaid, yet not regarding its said promises it has not taken сare of the said goods and chattels or safely carried and delivered the same for the plaintiff, but, on the contrary thereof, so carelessly behaved itself in that respect that the said goods and chattels, by and thrоugh the mere negligence and improper conduct of defendant and its servants, afterwards, to-wit, on the day aforesaid, became and were lost to plaintiff.
The second count charges that on the day aforesaid, at Chicago, Illinois, the defendant became and was indebted to the plaintiff in the sum of $538 for the loss of the said goods and chattels (describing them as goods, wares and merchandise,) then and there delivered to the defendant, tо be carried by the defendant from Chicago, Illinois, to El Paso, Texas, and being so indebted, the defendant, in consideration thereof, then and there promised the plaintiff ' to pay to him the said sum of money on request, and that, though thereafter requested so to do, the defendant has not paid such sum or any part thereof.
A summons was duly issued returnable to the September term, 1907, which was served on July 8, 1907. On September 3 the appellant filed its appearance in writing, and on the 7th day of the same month a default was entered -against the appellant, the order being in the following terms: “On this day comes the plaintiff, and it appearing to the court that due personal service of the summons has been had on defendant for at least ten days before the first day of this term, 'and the defendant being now thrice called in open court comes not, nor does any person for it, but herein makes default, wdiich is, on motion of the plaintiff, ordered to be taken and the same is hereby entered of record; wherefore the plaintiff ought to have and recover of and from the defendant his damages sustained herein by reason of the prеmises.” On the 14th day of May, 1908, the appellant entered its motion to set aside said default and for leave to plead, on two grounds: First, that the court had no right to enter a default against it, as it had a written appearancе on file; and secondly, that the default was wrongfully entered, as the appellee was a non-resident and at the time of the entering of the default no cost bond was on file. The appellant filed affidavits with its motion to set aside the default, setting up its grounds of defense to the action upon the merits. The court overruled the motion to set aside the default, whereupon the appellant moved the court to dismiss the suit for want of a cost bond, and thereupon the appellee filed a cost bond and the motion to dismiss the suit was overruled. A jury was then waived, and the court assessed the damages of the appellee at $538 and rendered judgment against appellant for that amount and costs, from which judgment appellant prosecuted an appeal to the Appellate Court for the First District, where the judgment of the superior court was affirmed, and the Appellate Court hаving granted a certificate of importance, a further appeal has been prosecuted to this court.
The first contention of the appellant is that the court erred in entering a default judgment against it, as it is said at the time of the entering of said judgment it had a written appearance on file. We think it manifest that a judgment by default, after an appearance has been filed, for want of an appearance is irregular, and that the proper order in such case is judgment nil dicit or for want of a plea. The entering of a default judgment for want of an appearance instead of for want of a plea, after an appearanсe is on file, is, however, a mere irregularity and should not work a reversal of a judgment. Although a defaulted party has a meritorious defense, a default will not be set aside if he or his attorney has been guilty of negligence. Mendell v. Kimball,
It is next contended that the court erred in declining to dismiss the suit for want of a cost bond. A judgment in favor of a non-resident plaintiff is not void because the record fails to show that the plaintiff gave a cost bond. (Palmer v. Riddle,
It is further contended the trial court erred in admitting proof of the cost price in Chicago of the lost merchandise, as it is said the measure of damages should have been fixed by the market value of the merchandise at the place where it was to be delivered. We think the court did fall into error in the particular pointed out, (Northern Transportation Co. v. McClary,
It is finally contended that by the receipt which was issued to Spaulding & Co. on behalf of the аppellee at. the time the merchandise was delivered to appellant for shipment, the right of recovery in case of the loss of the merchandise, other than by the negligence of the appellant, was limitеd to $50. The declaration averred the goods were lost through the negligence of the appellant, and that averment was admitted by the default of the appellant. If, however, that question were open upon thе assessment of damages, the law is, we think, settled in this State that where a common carrier delivers to the shipper a receipt for goods received for shipment which limits its common law liability, in order to bind the shipper it must be mаde to appear by the carrier that the shipper was aware of the restriction contained in the receipt. (Field v. Chicago and Rock Island Railroad Co.
It is urged by the appellant that the Joesting case is out of line with the cases, generally, upon this question in other States. While there is some conflict in the authorities upon the question, that case was well considered, and is, we think, in harmony with the cases upon the subject of the liability of common carriers to shippers in this State, and we are not disposed at this late day to modify the opinion or recede from the position therein announced.
Other questions are raised upon this record, but they go to the right of recоvery and not to the question of damages, and appellant upon those questions is foreclosed by the default and they need not be considered in this opinion.
Finding no reversible error in this record the judgment of the Appellate. Court will be affirmed.
Judgment affirmed.
Mr. Justice Cartwright, dissenting.