Hunt v. O'Brien, 59 Ill. App. 321 (1895)

June 24, 1895 · Illinois Appellate Court
59 Ill. App. 321
Thomas F. Hunt v. Harry P. O'Brien

Thomas F. Hunt v. Harry P. O’Brien.

1. Continuances—Illness of Attorney.—Where a party asked to have a case continued because of the absence of his attorney, who, he stated, was too ill to be present, no other evidence of such illness appearing, the continuance was properly refused.

2. Ad Damnum—Insufficiency of, Not to be Raised on Appeal.— When the judgment recovered is greater than the ad damnum, the objection must be made in the court below; it can not be raised for the first time in the Appellate Court.

Assumpsit, on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the March term, 1895.

Remittitur entered and judgment affirmed.

Opinion filed June 24, 1895.

John Knefee, attorney for appellant.

Heckman & Carnahan, attorneys for appellees.

Mr. Presiding Justice Waterman

delivered the opinion of the Court.

When this case was called for trial in the Circuit Court, the defendant in person asked to have the- same continued because of the absence of his attorney, whom it was stated was too ill to be present.

Ho other evidence of the illness of such attorney was presented, whereupon the court, as it properly might, in its discretion, refused to continue the same, and directed that a jury be impaneled; which being done, a verdict for $284.85 was rendered, upon which there was judgment, and this appeal is prosecuted by the defendant below.

It is urged that the ad damnmn of the declaration being $284.55, the judgment for $284.85 can not be sustained.

The attention of the Circuit Court was not called to the insufficiency of the ad damnum. Thus this defect could have been easily remedied by- amendment. Such an objection can not be raised for the first time here. Utter v. Jaffray, 15 Ill. App. 236; Tomlinson v. Earnshaw, 112 Ill. 311.

The judgment of the Circuit Court is affirmed for $280.55, a remittitur of $4.30 having been entered by appellee.