Carl v. Loftus, 156 Ill. App. 429 (1910)

June 28, 1910 · Illinois Appellate Court · Gen. No. 15,007

156 Ill. App. 429

Mary J. Carl, Appellee, v. Patrick W. Loftus et al., Appeal of Patrick W. Loftus, Appellant.

Gen. No. 15,007.

Appeals and errors—what not considered upon review of refusal to vacate judgment. Upon such an appeal alleged errors at the trial or defects in the declaration will not be considered.

Trespass on the case. Appeal from the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1908.

Affirmed.

Opinion filed June 28, 1910.

Statement by the Court. In an action of trespass on the case against three defendants, one only, the appellant here, was served with process. All of them, however, pleaded the general issue.

When the case was called for trial, defendants did not appear, and after an ex parte hearing before a jury, a verdict of $1,000 was returned against one defendant, the appellant here. The record recites that “issues being joined as to Patrick W. Loftus, it is ordered that a jury come,” etc. The record shows no disposition made of the issues between plaintiff and the other defendants. Judgment was rendered against Patrick W. Loftus alone, at the same term of court. At the second term thereafter, the appellant moved the court to set aside the judgment. From a denial of this motion an appeal was prayed and allowed»

John J. Swenie and T. F. Monahan, for appellant.

A. W. Briokwoob, for appellee.

Mr. Justice Mack

delivered the opinion of the court.

The court had jurisdiction of the parties and the subject-matter. Its judgment therefore was not a nullity; it was valid until reversed. After the term, the court was powerless to set aside the judgment, even if this defendant’s attorney, contrary to the facts in this case, had known nothing of the verdict and so had been unable to move for a new trial during the term. The court therefore did not err in refusing to vacate the judgment.

It would he improper on this appeal from the order refusing to vacate a judgment to consider the alleged errors at the trial or defects in the declaration.

The appeal was not and could not after the term have been allowed from the original judgment. The remedy to correct any errors therein is by writ of error.

Affirmed.