Hobson v. Emporium Real Estate & Manufacturing Co., 42 Ill. 306 (1866)

Nov. 1866 · Illinois Supreme Court

42 Ill. 306

Atwood T. Hobson v. Emporium Real Estate and Manufacturing Company.

1. Judgment on attachment, upon constructive notice. It is a fatal error, for the plaintiff, in an attachment in which there was no personal service or appearance, to take judgment for more than tli'e sum claimed in the affidavit and notice.

3. Ad damnum—the limit of recovery. It is error to take judgment for a larger sum than the damages laid in the declaration.

Writ of Error to the Circuit Court of Pulaski county; the Hon. Wesley Sloan, Judge, presiding.

This was a foreign attachment, commenced in the Circuit Court of Pulaski county, at the April Term, 1861. The affidavit filed by the plaintiff claims $173.86. Notice was given that an attachment had issued for that amount. The declaration filed claimed damages in the sum of $173.86. Judgment was rendered by default for $429.91 and costs. To reverse that judgment this writ of error is prosecuted by the defendant in the attachment.

Mr. J. Dougherty, for the plaintiff in error.

Mr. William H. Green, for the defendant in error

Mr. Justice Lawrence

delivered the opinion of the Court:

This was an attachment in which there was no personal service or appearance, and the affidavit, notice and declaration only claimed an indebtedness of $173.86, but judgment was rendered for $429.91 and costs. It was error in the plaintiff to take judgment for more than the sum claimed in the affidavit and notice. Rowley v. Berrian, 12 Ill. 198. It was also error to take judgment for a larger sum than the damages laid in the declaration. The judgment is reversed and the cause remanded.

Judgment reversed.