Chicago, Burlington & Quincy Railroad v. Minard, 20 Ill. 9 (1858)

April 1858 · Illinois Supreme Court

20 Ill. 9

APRIL TERM, 1858, AT OTTAWA.

The Chicago, Burlington and Quincy Railroad Company, Appellant, v. Elias Minard et al., Appellees.

APPEAL FROM LA SALLE.

The court will take notice of a summons issued by a justice of the peace, and of the indorsements thereon, if set out in a bill of exceptions; and if the .judgment is for a greater amount than is claimed on the back of the summons and interest, it is erroneous and will be reversed.

This action was originally brought before a justice of the peace by the plaintiff below, to recover from defendant below, damages for the loss of a quantity of corn delivered to said defendant, to transport to Chicago. Brought by appeal into the La Salle county Circuit Court.

There was a trial by jury, and verdict for plaintiff below, assessing damages at $60. Plaintiff remitted five dollars of said verdict. Defendant below moved for a new trial, and in arrest of judgment. Motions overruled. Judgment for plaintiffs below for $55 and costs. Defendant appealed to Supreme Court.

The bill of exceptions shows the original summons from said justice, being in the words and figures following, to wit:

STATE OF ILLINOIS, LA SALLE COUNTY. } ss.

The People of the State of Illinois to any Constable of said County, greeting:

You are hereby commanded to summon Chicago, Burlington & Quincy Railroad Company to appear before me at my office in Whitfield, on the 18th day of April, 1857, at 1 o’clock P. M., to answer the complaint of Elias Minard and Charles E. Pooler, for a failure to pay them a certain demand not exceeding one hundred dollars, and thereof make due return as the law directs.

Given under my hand and seal this 9th day pf April, A. D. 1857.

JOHN READ, [seal.]

Justice of the Peace.

Upon which, said summons were the following indorsements:

Demand, $45; costs, $0.56; April 10th, personally served on John H. Jenkins, Agent C., B. & Q. R. R. Co.; by reading and leaving copy; service, 25; copy, 124; mileage, &, 38. James J. Miliary, Const.

This cause was tried by Hollister, Judge, and a jury, at November term, 1857, of the La Salle Circuit Court.

Hough & Bascom, for Appellant.

Glover & Cook, for Appellees.

Caton, C. J.

This was an appeal from the judgment of a justice of the peace, to the Circuit Court. The error here assigned is, that the judgment in the Circuit Court was for more than the amount claimed on the back of the summons. The answer made to this is, that this court cannot see what was the amount of the claim indorsed on the summons. A copy of the summons is not given as a part of the original record, but it is set out and certified to by the judge in the bill of exceptions. It is insisted by the defendants in error, that it was not such a paper as could be certified to in the bill of exceptions, it being a part of the record which should be certified to by the clerk, instead of the judge. We think the objection altogether too technical. Although it may have been a part of 'the record to which the clerk might certify, we think it was none the less so when set out in the bill of exceptions and certified to by the judge, a copy of which, bill, containing the summons, is certified to by the clerk. We think we are judicially informed of the contents of the summons and of the amount of the claim indorsed upon it, and that the judgment of the Circuit Court was for more than the amount of such claim and interest, which was erroneous.

The judgment must be reversed and the cause remanded.

Judgment reversed.