Messervey v. Beckwith

Citations

• 41 Ill. 452

Syllabus

<p>1. Default—within what time a motion must he made to set it aside. A motion to set aside a default comes too late at a term subsequent to that at which the judgment was obtained.</p> <p>2. Process—where the summons claims too small an amount of damages. Where an alias summons in assumpsit, upon which service was had, claimed a smaller amount of damages than was claimed in the praecipe the original summons and the declaration, it was regarded a clerical error which the court, from which the writ issued, would correct on motion, before or after judgment.</p> <p>3. The damages laid in the declaration is the limit of the plaintiff’s recovery, and where a judgment by default was rendered upon service of such alias summons which claimed a less sum in damages than was laid in the declaration, and the judgment exceeded the amount claimed in the summons, but was less than the sum laid in the declaration, it was held, there was a simple variance between the declaration and the summons, which not being taken advantage of in the court below, could not on error.</p>