Ellis v. Ewbanks, 4 Ill. 584, 3 Scam. 584 (1842)

Dec. 1842 · Illinois Supreme Court

4 Ill. 584, 3 Scam. 584

Daniel Ellis et al., plaintiffs in error, v. William Ewbanks, defendant in error.

Error to Adams.

Where a writ of error was sued out of the Supreme Court, and a supersedeas granted, upon the transcript of a record from a Circuit Court; but the record was after-wards amended in the Circuit Court, so as to remove the errors complained of, and a new transcript was certified to the Supreme Court, under a writ of certiorari : Held, that the plaintiff in error was not entitled to costs.

This was an action of debt, instituted in the Adams Circuit Court, by Ewbanks against Ellis and Adair, on the 20th day of August, 1839. The summons was issued on that day, but is dated, “ this twentieth day of August, in the year of our Lord one thousand eight hundred and thirty,” and is made returnable at the term to be holdeü “ on the second Monday in the month of September next;” and was returned on the 4th day of September, 1839, with an endorsement that it was served August 28th, 1839.

At the September term, 1839, judgment was rendered by default, against the defendants, for $101.50 debt, and $21.31 damages, and costs of suit.

In May, 1840, the defendants in the Court below sued out of the Supreme Court, their writ of error, to reverse this judgment. A supersedeas was granted. At the December term, 1841, Browning, attorney for the defendant in error, made affidavit that the precipe in this case, on which the summons was issued, was filed in the Court below, August 19th, 1839; and that the summons issued August 20th, 1839 ; and that, by the error and omission of the clerk, the word “nine” was omitted in the attestation of said writ,.so as to cause said summons, upon its face, to bear date on the 20th day of August, one thousand eight hundred and thirty, instead of one thousand eight hundred and thirty-nine; and that the clerk of the said Circuit Court informed him, in November, 1841, that the word “nine” was omitted by mistake, and that said summons was, in fact, issued on the 20th day of August, 1839 ; and that he did not know of the existence of said mistake before he received such information in said month of November; and since then he has had no opportunity of applying to the Court below to correct the error. Upon this affidavit he obtained a certiorari to the Court below, and at the July term, 1842, a transcript of the record was returned, showing that at the March term, 1842, of the Adams Circuit Court, before the Hon. Stephen A. Douglass, upon the affidavit of the clerk, showing that the summons was erroneously dated by misprison of the clerk, the Circuit Court granted leave to the clerk to amend the summons so as to bear date upon the day when issued, and it was accordingly so amended.

At the December term, 1842, J. A. McDougall, for the plaintiffs in error, moved for a judgment for costs against the defendant in error.

The motion was overruled.

Motion overruled,.