#### George W. Utter et al. v. E. S. Jaffray et al.

Practice.—Where by mistake in an amended declaration the ad damnum was laid out at a less sum than the amount claimed in the affidavit to hold to bail, the process of capias issued therein, and the original declaration, and by consent there was a trial by the court below and judgment was given for the plaintiffs for the sum claimed in the affidavit to hold to bail, and no exception was then or at any time interposed by the defendants. Held, that under the liberal and enlightened practice now prevailing the judgment should not be reversed for this cause. The rpotion in this court to amend will be granted.

Error to the Circuit Court of Fayette county; the Hon. Jesse J. Phillips, Judge, presiding.

Opinion filed October 10, 1884.

Messrs. Bell & Green, for plaintiffs in error;

that where the judgment is for more damages than are laid in the ail damnum, it will he reversed on error, cited Oakes v. Ward, 19 Ill. 46; Kelley v. Nat. Bk., 64 Ill. 541; Brown v. Smith, 24 Ill. 196; Walcott v. Holcomb, 24 Ill. 331; Altes v. Hinckler, 36 Ill. 275.

Messrs. Asi-ioraft & Steilman, for defendants in error;

that where a cause is tried by the court by consent of parties, without a jury, the finding of the court can not be questioned on appeal or error, unless the record shows that exceptions were taken to the decision of the court, or that a motion was made for a new trial and overruled, and the decision of the court excepted to, cited Duncan v. Chandler, 5 Bradwell, 499; Hartford Fire Ins. Co. v. City of Paris, 8 Bradwell, 181; Parsons v. Evans, 17 Ill. 238; Sherman v. Skinner, 83 Ill. 584; D. M. Force Mfg. Co. v. Horton, 74 Ill. 310; Dickhut v. Durrell, 11 Ill. 72; Gibbons v. Johnson, 3 Scam., 63; Reichwald v. Gaylord, 73 Ill. 503; R. S. Ch. 110, § 60; Bowden v. Bowden, 75 Ill. 111.

*237Where the objection is one that might have been obviated by amendment if it had been seasonably made in the court below, it can not be urged for the first time in this court: Tug Boat v. Waldron, 62 Ill. 221; Zeigler v. Cox, 63 Ill. 48; Thompson v. Hoagland, 65 Ill. 310; Pugh v. Calloway, 10 Ohio, 488; Rivereau v. St. Ament, 3 Ia. 118; Crosson v. White, 19 Ia. 109; Haverhill v. Cronin, 4 Allen (Hass.), 141; Robinson v. English, 34 Pa. 324; Penn. etc., Co. v. Neel, 54 Pa. 9.

Per Ccfriam.

The only error assigned is that the judgment exceeds the ad damnum laid in the declaration.

On examination of the record originally filed, we find it is not made up in accordance with the rule (8) of this court, which requires first, a copy of the process; second, the pleadings of the parties, etc.

The record begins with an order of the court below granting leave to plaintiffs to amend their declaration. The defendants in error have entered a motion for leave in this court to amend the amended declaration by increasing the ad damnum,, and with the motion have filed a certified copy of the affidavit to hold to bail, filed at the commencement of the suit, the process of capias issued thereon and the original declaration, from all which it seems clear that it must have been by inadvertence merely that the ad damnum in the amended declaration was laid out ata sum less than the amountclaimed in the affidavit to hold to bail.

Defendants in error suggest that by virtue of clause 10, Sec. 6. Ch. 7, E. S., they may have leave to amend their declaration in this court. We are not perfectly clear that the case is within that provision, but we will permit the transcript of the record filed with the motion to be filed as a part of the record in the cause and will treat it accordingly.

The record being so completed the question arises whether the judgment should be reversed for the error assigned.

Formerly such would have been the result, nor could the amendment necessary have been made in the circuit court except upon terms of payment of cost, setting aside the verdict and granting a new trial. But by section 24 of the Prac*238tice Act as now in force, the utmost liberality as to amendments is allowed for the furtherance of justice and in avoidance of the evils and hardships constantly occurring under the old practice, care being taken always to permit no undue advantage to be secured thereby and to impose such terms as may be reasonable.

Under this section it can not be doubted that had the attention of the court been called to it, the necessary leave to amend would have been granted as a matter of course. It appears from the record that the case was submitted to the court without a jury by consent, and that the court, after hearing the evidence and arguments, gave its judgment in favor of the plaintiffs for the sum claimed in tiie affidavit to hold to bail, which was within the ad dam.mmi in the original declaration, and that no exception was then or at any time interposed by the defendants. In the case of Bowden v. Bowden, 75 Ill. 111, where the action being debt, the judgment was in damages, the Supreme Court refused to reverse notwithstanding the repeated rulings of the court, and say that, “In view of the course of legislation upon kindred topics, we have arrived at the conclusion that for mere tecl - nical errors like this we will not reverse, unless by some motion for new trial, or in arrest of judgment, or some other proper motion, the question shall be raised inffhe court below. ’

In I. & St. L. R. R. Co. v. Estes, 96 Ill. 473, there was a substantial variance between the allegations and proof on an important point, and there was wholly wanting a material allegation which was necessary to admit certain proof that was heard; but though there was objection generally to the proof the special ground was not pointed out and the court say: “We have heretofore held that an objection of this

kind, which, if specifically pointed out in the circuit court mav be at once obviated, can be of no avail unless the attention of the court is specially called to the point. A case ought not to be reversed in this court on a question which the circuit court did not in fact decide and which if presented to that court might have been at once obviated.” To the same effect is St. Clair Co. B. S. v. Fietsam, 97 Ill. 474.

*?The error here complained of can not have operated prejudicially to the plaintiffs in error. They were apprised by the affidavit for bail as to the exact sum demanded by plaintiffs below, and the fact that they made no objection to the judgment of the court is conclusive that they had not observed the mistake in the amended declaration, or if they had, they refrained from pointing it out, with the design of gaining the advantage now sought.

Under the more liberal and enlightened practice now -prevailing, we think the judgment should not be reversed for this cause, and to quote again from Bowden v. Bowden, supra, “ if a party will be silent on the occurrence of such a mistake, one that would be corrected on the instant should the attention of the court be called to it, one that in no wise affects the merits of the controversy, he ought to be foreclosed of his rights to assign it for error in this court.”

The judgment will be affirmed.

Judgment affirmed.