{
  "id": 2709250,
  "name": "Charles Hagmann et al., Appellants, v. W. G. Schoelkopf, Appellee",
  "name_abbreviation": "Hagmann v. Schoelkopf",
  "decision_date": "1910-10-21",
  "docket_number": "Gen. No. 15,145",
  "first_page": "313",
  "last_page": "316",
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      "cite": "157 Ill. App. 313"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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      "reporter": "Ill.",
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  "last_updated": "2023-07-14T20:55:34.372632+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Charles Hagmann et al., Appellants, v. W. G. Schoelkopf, Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Smith\ndelivered the opinion of the court.\nThis action was commenced before a justice of the peace, and by appeal from the judgment rendered there it was removed to the Circuit Court. On the trial in that court a judgment was entered for the defendant for $104.63, being for defendant\u2019s set-off $86.64 with interest, and plaintiffs prosecute this appeal to reverse the judgment.\nIt is urged that the trial court erred in refusing to grant plaintiffs\u2019 application for a continuance on February 19, 1908.\nIt appears from the record that when the cause was called for trial on February 18, 1908, a motion was made by the plaintiffs to continue the cause on the ground that Charles Hagmann, one of the plaintiffs, was ill. In support of the motion a physician\u2019s certificate was presented to the court dated February 18, 1908, as follows: \u201cChas. Hagmann is ill with la grippe and cannot leave the building. He has a high fever. E. E. Smith, attending physician.\u201d The court granted a continuance of the cause until the next day-on terms. On February 19, 1908, the case was again called for trial, and plaintiffs moved the court for a continuance and presented the same physician\u2019s certificate in support of the motion and also the affidavit of G. E. Mead as follows:\n\u201cAffiant deposes that he is agent and bookkeeper for plaintiffs ; that Charles E. Hagmann is the only member of plaintiffs\u2019 firm familiar with all the circumstances of this cause and that said Hagmann and this affiant were the only witnesses who testified at the trial of this case in the Justice Court; that said Hagmann, if able to attend this trial, would testify that defendant occupied plaintiffs\u2019 office and shop for six months or more in 1903 and agreed to pay rent for same and also .agreed to pay for light and fuel. Hagmann would also testify that plaintiff furnished to defendant certain material and that there is now due to plaintiffs from defendant $75 after deducting defendant\u2019s credits.\nThat Hagmann would testify there is now due to plaintiffs $15 for commission on the sale of defendant\u2019s trimotor.\nThat upon plaintiffs procuring a purchaser for said trimotor, defendant took from plaintiffs\u2019 charge the consummation of said sale and accepted different terms than those agreed upon; that plaintiffs have a good and meritorious cause of action and that same will be irreparably prejudiced if said Hagmann is not present at the trial thereof, and that the foregoing facts cannot be proved, by any other witnesses; that affiant knows of his own knowledge that Hagmann is ill and cannot leave the building without danger to his health.\u201d\nThe defendant admitted that Hagmann would testify to the facts set up in the affidavit, if present. The motion was thereupon denied. We do not think the court erred in denying the motion for a continuance.\nWe think it was error to allow the defendant\u2019s attorney to argue to the jury as to the conduct of the justice of the peace on the trial before him. This had nothing to do with the issues before the jury. But the error was trivial and not reversible.\nIt is urged that the judgment rendered in this cause against the plaintiff, when there were two plaintiffs, is void for uncertainty. The judgment is certain as to the person in whose favor it was rendered and who is entitled to the money, and we think it is also clear from the record that the defendant in the cause is entitled to the money from the plaintiffs who sued as co-partners. The judgment is based on the plea of set-off and the evidence introduced in support thereof. \u201cIt is the duty of the appellate court rather to regard the substance only, and not mere form; but still there must always he in the record enough to show what was intended to he decreed. Martin v. Barnhardt, 39 Ill. 9.\u201d Hofferbert v. Klinkhardt, 58 Ill. 450.\nIt is apparent from the record that if the word plaintiff, as used in the judgment, had been used in the plural instead of in the singular number, there would he no uncertainty in the judgment. Its meaning would he plain and definite.\nFrom an inspection of the entire record it is manifest that the omission to use the letter \u201cs\u201d at the end of the word plaintiffs was simply a clerical mistake. This does not vitiate or render void a judicial record. Hofferbert v. Klinkhardt, supra. This point as to the verdict was not made in the court below, and cannot therefore be raised here. Ho assignment of error covers it.\nInasmuch as no exception was preserved in the bill of exceptions to the action of the trial court in overruling the motion for a new trial, the merits of the controversy are not brought before us for review. Pottle v. McWorter, 13 Ill. 454; Boyle v. Levings, 28 id. 314; McClurkin v. Ewing, 42 id. 283; Gill v. People, 42 id. 321.\nThe judgment is affirmed.\n'Affirmed.",
        "type": "majority",
        "author": "Mr. Justice Smith"
      }
    ],
    "attorneys": [
      "Maecellus W. Meek, for appellants.",
      "E. A. AbqbjS\", for appellee."
    ],
    "corrections": "",
    "head_matter": "Charles Hagmann et al., Appellants, v. W. G. Schoelkopf, Appellee.\nGen. No. 15,145.\n1. Continuance\u2014when denial not ground for reversal. The action of the court in denying a motion for a continuance predicated upon the absence because of illness of one of the parties to the cause will not reverse where the opposite party admitted that such person if present would testify to the facts set up in the affidavit for continuance.\n2. Trial\u2014when argument of counsel improper. Held, that while it was error to allow the attorney of one of the parties to argue to the jury as to the conduct of the justice of the peace on the trial before him, yet that such error being trivial would not reverse.\n3. Judgments\u2014when not void for uncertainty. Mere clerical errors will not vitiate a judgment nor will a judgment be held void where its certainty is apparent from an examination of the entire record.\n4. Appeals and errors\u2014when merits of controversy not subject to review. In the absence of an exception preserved in the bill of exceptions to the action of the trial court in overruling a motion for a new trial, the merits of the controversy are not preserved for review.\nAction commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Kichard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.\nAffirmed.\nOpinion filed October 21, 1910.\nMaecellus W. Meek, for appellants.\nE. A. AbqbjS\", for appellee."
  },
  "file_name": "0313-01",
  "first_page_order": 331,
  "last_page_order": 334
}