{
  "id": 2611967,
  "name": "Towarzystwa Litewsko Polskiego Ostrobramy, W. Chicago, Illinois, v. Stanislaw Barczaitis",
  "name_abbreviation": "Towarzystwa Litewsko Polskiego Ostrobramy v. Barczaitis",
  "decision_date": "1908-03-06",
  "docket_number": "Gen. No. 13,757",
  "first_page": "94",
  "last_page": "96",
  "citations": [
    {
      "type": "official",
      "cite": "139 Ill. App. 94"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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  "cites_to": [
    {
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      "category": "reporters:state",
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    {
      "cite": "15 Ill., 415",
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      "case_paths": [
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    {
      "cite": "5 Ill. App., 99",
      "category": "reporters:state",
      "reporter": "Ill. App.",
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      "case_paths": [
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  "last_updated": "2023-07-14T18:35:52.863125+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Towarzystwa Litewsko Polskiego Ostrobramy, W. Chicago, Illinois, v. Stanislaw Barczaitis."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Baker\ndelivered the opinion of the court.\nDefendant in error contends that the appearance in writing contained in the transcript, and thereby shown to have been filed two days before the.default and judgment, is not a part of the record proper, and such appearance not having been made a part of the record by the bill of exceptions, the record fails to show an appearance by the defendant. In support of this contention are cited Van Cott v. Sprague, 5 Ill. App., 99, and Schmidt v. Skelly, 9 id., 532. In neither of those cases was the question whetlier an appearance was part of the record proper involved.\nThompson v. Emmert, 15 Ill., 415, was an action upon a Pennsylvania judgment against Nelson, Emmert and Campbell. The record offered in evidence showed that Nelson only had been served with process, but that an attorney entered a general appearance for Emmert and Campbell, and it was said, p. 416: \u201cWas Emmert bound by the judgment in Pennsylvania? According to the decisions in this court the record afforded conclusive evidence that his appearance was entered by an attorney.\u201d We think that the appearance became a part of the record proper by the mere act of filing it.\nThe default of the defendant for failing to appear was irregular. Where the defendant has entered an appearance, but has failed to plead, the proper form of judgment is by nil \u00bfLicit and not by default. But for this irregularity alone the judgment should not be reversed.\nThe defendant, having entered its appearance, was entitled to notice of the proceeding to assess damages, and it was reversible error to proceed to assess damages without notice to it. American Mail Order Co. v. Marsh, 118 Ill. App., 248, and cases there cited;\nThe contention of the defendant in error that it will be presumed that such-notice was given cannot be sustained. Such notice could not have been given prior to March 7, for no judgment by default or by nil dicit had then been entered. The entry of judgment recites the default of the defendant for failure to appear \u201cwherefore the plaintiff ought to recover his damages, etc., and thereupon reference is had to the court to assess plaintiff\u2019s damages, and the court now here, after hearing etc., assesses plaintiff\u2019s damages at, etc.,\u201d and then follows the consideratum est all in a single order.\nFor the error indicated the judgment will be reversed and the cause remanded.\nReversed and remanded.",
        "type": "majority",
        "author": "Mr. Presiding Justice Baker"
      }
    ],
    "attorneys": [
      "Johnson, Belasco & McCabe, for appellant.",
      "Henry IN. Stoltenberg, for appellee."
    ],
    "corrections": "",
    "head_matter": "Towarzystwa Litewsko Polskiego Ostrobramy, W. Chicago, Illinois, v. Stanislaw Barczaitis.\nGen. No. 13,757.\n1. Record\u2014what part of, without incorporation in hill of exceptions. An appearance becomes a part of the record proper by the mere act of filing it.\n2. Default\u2014appropriate form of, where defendant fails to plead. Where the defendant has entered an appearance, but has failed to plead,, the proper form of judgment is by nil dicit and not by default.\n3. Assessment of damages\u2014when defendant entitled to notice of. A defendant, having entered his appearance, is entitled to notice of the proceeding to assess damages, and it is reversible error to proceed to assess damages without notice to him.\nAssumpsit. Writ of error to the Superior Court of Cook County; the Hon. Axel Ciiytraus, Judge, presiding.\nHeard in the Branch Appellate Court at the October term, 1907.\nReversed and remanded.\nOpinion filed March 6, 1908.\nStatement by the Court. In an action of assumpsit by the defendant in error against the plaintiff in error to recover sick benefits, brought in the Superior Court to the February term 1906, the summons was served more than ten days before the return day. The transcript shows that February 5, the. first day of the February term, a written appearance of the defendant, by attorney, was filed in the cause in the Clerk\u2019s office. February 7, on motion of plaintiff the default of the defendant for failure to appear was entered of record with judgment upon said default, that plaintiff ought to recover of the defendant his damages, etc., an assessment of damages by the court at $535, and final judgment against the defendant for said sum and costs. The same day, the defendant filed its verified plea. March 2, a day of said February term, the defendant entered its motion to set aside the default and judgment, the court continued the motion to the March term and at that term denied the motion.\nJohnson, Belasco & McCabe, for appellant.\nHenry IN. Stoltenberg, for appellee."
  },
  "file_name": "0094-01",
  "first_page_order": 110,
  "last_page_order": 112
}