Scott v. Cromwell, 1 Ill. 25, 1 Breese 25 (1820)

July 1820 · Illinois Supreme Court

1 Ill. 25, 1 Breese 25

Jehu Scott, Appellant, v. John Cromwell, Appellee.

APPEAL FROM MONROE.

Where the plaintiff amends in matters of form only, the defendant is not, for that reason, entitled to a continuance as a matter of course.

The defendant in a court below, the appellant here demurred specially to the plaintiff’s declaration, for informalities therein. The court sustained the demurrer, and gave plaintiff leave to amend, whereupon the defendant moved the court for a continuance, which motion the court overruled. To reverse this opinion, this appeal was taken.

Opinion of the Court. Where the plaintiff amends in matters of form only, the defendant is not, for that reason, and as a matter of course, entitled to a continuance. He has however, the right to plead de novo. The judgment of the court below must be affirmed. ⁽¹⁾

Judgment affirmed.

(1) .) The doctrine is well settled that an amendment of a mere formal matter will not entitle a party to a continuance, while an amendment in substance will work a continuance without cause being shown therefor by the opposite party. Rountree v. Stuart, post. Covell et al. v. Marks, 1 Scam., 525. Russell et al. v. Martin, 2 Scam., 493. Webb v. Lasater, 4 Scam., 548. Ills. Marine & Fire Insurance Co. v. Marseilles Manufacturing Co., 1 Gilm., 236. Hanks v. Lands, 3 Gilm., 227. O. & M. R. R. Co. v. Palmer et al., 18 Ills., 22.

Courts may allow amendments on the trial, if not against positive rules, to secure the ends of justice, if the opposite party is not thereby taken by surprise; if so, a continuance may be allowed. Miller v. Metzger, 16 Ills., 390.

It is not error to permit clerical errors to be amended on trial. Hargrave v. Penrod, post.

Since the foregoing note was prepared, a decision of the Supreme Court has been published in which they use the following language. “ By the uniform rule of practice, the court has no power to permit an amendment of the declaration, in a matter of substance, without granting a continuance if desired by the defendant; nor has the court any power, after verdict, to permit amendments of substance, except upon terms of the payment of costs, setting aside the verdict, and granting a new trial. Where such amendment is made, it becomes essentially a new declsrration, which the party has a right to prepare to defend.” Brown et al. v. Smith et al., 24 Ills., 196,