Pardridge v. Ryan

Citations

• 134 Ill. 247
• 25 N.E. 627

Syllabus

<p>1. Changing hobm Oh action—by the court—on its own motion against the party’s protest. After an action of assumpsit had been once tried, and the judgment reversed and the cause remanded, and the parties had made their opening statements to the jury, the court, on its own motion, and against the plaintiff's protest, discharged the jury, and ordered that the action be changed to an action of account, and that the parties account each with the other, and appointed an auditor to take the account: Held, that the course pursued by the trial court was irregular, and arbitrary in the extreme.</p> <p>2. Action oh account—judgment quod computet. In an action of account, an interlocutory judgment quod computet is always entered before the final judgment upon the findings of the auditors. This judgment merely determines the defendant’s liability to account, but determines nothing as to what may be due after account taken. If the liability to account is denied, the issue may be tried before a jury.</p> <p>3. In this case, which was in assumpsit, the court, on its own motion, ordered that the form of action be changed to account, and the record showed that the defendant made no objection to the proceeding, and stated that he was willing to account, and asked that plaintiff should also account, whereupon the court appointed an auditor, and ordered that each party account with the other: Held, that the order directing an accounting might be regarded as a judgment quod computet.</p> <p>4. Same—oath of auditor—waiver. The requirement that an auditor, in an action of account, shall be sworn before entering upon his duties, is not jurisdictional, but is one that may be waived by the parties; and the appearance of the parties before the auditor, and the examination of witnesses, without objection that he is not sworn, will constitute such waiver.</p> <p>5. The fact that one appointed an auditor in an action of account is also a master in chancery of the same court in which the action