Sims v. Hugsby, 1 Ill. 413, 1 Breese 413 (1831)

Dec. 1831 · Illinois Supreme Court

1 Ill. 413, 1 Breese 413

Ignatius R. Sims, Appellant, v. John Hugsby, Appellee.

APPEAL FROM MORGAN.

A copy of a note filed with the declaration is no part of the record; though the clerk may incorporate it into the record, it does not become a part of it.

To make a note a part of the record, so that the conrt may notice it for any purpose, oyer must be craved of it.

Hugsby brought his action of debt in the Morgan circuit court, against Sims and others, upon a writing obligatory for the payment of $450. Sims was alone served with process, and on being called, made default. The clerk assessed the damages, and the court rendered judgment for the sum .so reported to be due by the clerk, amounting to $287.3T|-, “ part of the debt in the declaration mentioned.” From this judgment Sims appealed, and assigned for error that the judgment is for more than the debt and interest due on the writing filed, and that there was no jury to inquire of damages, and that there could have been no damages, but only a judgment for the debt, as by the writing filed.

Hall, for appellant.

W. Thomas, contra.

Wilson, Chief Justice,

delivered the opinion of the Court. From the record in this case, and a copy of the note which it contains, and which was the foundation of the original action, it appears that the judgment of the court below was rendered by default, for more than the plaintiff was entitled to recover; the clerk, in ascertaining the amount, having omitted to notice one of the credits indorsed on the note.

For this error, the defendant below asks for a reversal of the judgment.

The copy of the note and indorsement form no part of the record, and they do not become so, merely by the clerk’s having inserted them. To have made the note part of the record, so as to enable the court to notice it for any purpose, the defendant should have craved oyer.

This not having been done, no error is apparent upon the face of the record, and the court can not look beyond it. Littell’s Rep., 225.

If too large a judgment has been rendered against the appellant in the court below, his remedy is by motion there. The error complained of is rather the mistake of the clerk than the error of the court. In a case like the present, the law has assigned to the clerk the duty of assessing the damages, and if, in the discharge of that duty, he should allow either too much or too little, the court, under whose direction it is made, will, upon motion, correct it. To that court then, and not to this, the application should be made. 6 Mass. Rep., 272. 2 Wash. Rep., 173.

The judgment of the court below is affirmed with costs, and the cause remanded. ⁽¹⁾

Judgment affirmed.

(1) See Browder v. Johnson, ante, 96. Giles v. Shaw, ante, 219. Bogardus v. Trial, 1 Scam., 63, and Harlow v. Boswell, 15 Ill., 56, and note to Reynolds v. Mitchell, ante, p. 177.