Simms v. Klein, 1 Ill. 371, 1 Breese 371 (1830)

Dec. 1830 · Illinois Supreme Court
1 Ill. 371, 1 Breese 371
Ignatius R. Simms, Appellant, v. Joseph Klein, Appellee

Ignatius R. Simms, Appellant, v. Joseph Klein, Appellee.

APPEAL FROM MORGAN.

A sheriff’s return in this form: “ I. R. Simms summoned by reading ” and signed by the sheriff, and dated, is sufficient.

Neither the law, nor the practice of the courts requires that the judgment should contain the amount of costs in numero.

Ten per cent, damages allowed, where the appeal was evidently taken for delay.

Klein brought an action of assumpsit in the court below against Simms, on a promissory note, and recovered a judgment by default, and the clerk assessed the damages. The declaration was in the usual form. The sheriff’s return to the original summons against Simms, was in this form, viz.: 611. It. Simms summoned by reading, this 17th day of August, 1830. S. T. Matthews, sheriff.”

Several errors have been assigned, which are particularly noticed in the opinion of the court.

Opinion of the Court by

Justice Smith.

The appellant relies on four errors assigned as cause for the reversal of the judgment :

1. The insufficiency of the return of the sheriff of the service of the summons.

2. The insufficiency of an allegation of a promise in the declaration to pay the sum demanded.

3. That the judgment by default is erroneous, because no evidence appears to show how the clerk assessed the damages.

4. That as the judgment does not include the costs in numero, it is error.

The .whole of the objections are considered untenable. The return shows that the defendant was regularly summoned, although his name is written “I. R. Simms," in the return, and the court will infer that it is the defendant, although his Christian name is not written out at length. The *372objection is considered frivolous. Equally so are the second and third objections. The declaration is sufficient, and even technically correct, and the mode of entering up the default of the defendant and assessing damages is the only one recognized by courts.

McConnel, for appellant.

Thomas, for appellee.

As to the last objection, that the judgment does not contain the amount of the costs in a particular enumeration of their amount, it is a sufficient answer, that neither the law, nor the practice of our court requires it to be done; and it is also manifest that, from our mode of proceeding in the circuit court, it would be impracticable to comply with such a form.

In every aspect in which this case can be viewed, it must be considered as having been brought here for delay, and as such, the court is of opinion that the judgment should be affirmed with ten per cent, damages and costs. (1)

Judgment affirmed.