{
  "id": 2857762,
  "name": "Joseph Elia, Defendant in Error, v. Frank Bavuso et al. (Defendants), Vincenzo Guglielmo, Plaintiff in Error",
  "name_abbreviation": "Elia v. Bavuso",
  "decision_date": "1914-06-15",
  "docket_number": "Gen. No. 19,731",
  "first_page": "487",
  "last_page": "489",
  "citations": [
    {
      "type": "official",
      "cite": "187 Ill. App. 487"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "9 Ark. 358",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8727374
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/9/0358-01"
      ]
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  "last_updated": "2023-07-14T20:57:10.884591+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Joseph Elia, Defendant in Error, v. Frank Bavuso et al. (Defendants), Vincenzo Guglielmo, Plaintiff in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Baker\ndelivered the opinion of the court.\nPlaintiff Elia brought an action of debt against the defendants on a penal bond in the sum of four thousand six hundred dollars to perform the covenants in a certain building contract between Bavuso and plaintiff. The summons fails to state the debt demanded and only states that the defendants are required to answer \u201cunto Joseph Elia in a plea of debt to the damage of the plaintiff one thousand dollars.\u201d The declaration is not drawn in accordance with approved forms, hut as the judgment must be reversed for an error in procedure, we will not consider the question of the sufficiency of the declaration to support a judgment by default.\nIt appears from the record that plaintiff in error Gruglielmo was duly served with summons, and failing to appear his default was entered; that thereupon came a jury, who were sworn \u201cto try the issues joined and a true verdict render according to the evidence\u201d; that the jury returned a verdict finding the issues for the plaintiff, finding \u201chis debt to be $4600.00\u201d and assessing plaintiff\u2019s damages at one thousand dollars; that then and before the entry of judgment the following order was made: \u201cIt is ordered that said debt be discharged upon the payment of the damages, costs of suit and interest thereon.\u201d Then follows a judgment that plaintiff recover of defendant Gruglielmo the sum of one thousand dollars and his costs. No issue was joined between the parties. The plaintiff had the right to have the damages assessed by a jury, but the swearing of the jury was radically defective because it did not include an oath to assess plaintiff\u2019s damages. The jury should have been impaneled and sworn to assess plaintiff\u2019s damages, and for the error in failing to swear the jury to assess the damages the judgment must be reversed. McLain v. Taylor, 9 Ark. 358; Sydnor v. Burke, 4 Rand. (Va.) 161. \u201cOn an inquest of damages the jury should be sworn to ascertain the quantum of damages and not to try an issue joined.\u201d 10 Encyc. of PL & Pr. 1152.\nThe result may have a beneficial effect by producing more care on the part of attorneys in declaring and in the clerks of courts in preparing writs and keeping records, and thus preserve in attorneys and clerks some attention to legal forms. When the case goes back to the County Court for the reason assigned, the plaintiff will have an opportunity to amend or the defendant to demur to the declaration.\nReversed and remanded.",
        "type": "majority",
        "author": "Mr. Presiding Justice Baker"
      }
    ],
    "attorneys": [
      "Vincent D. Wyman, Otto W. Jurgens and Charles E. Carpenter, for plaintiff in error.",
      "William A. Jennings, for defendant in error."
    ],
    "corrections": "",
    "head_matter": "Joseph Elia, Defendant in Error, v. Frank Bavuso et al. (Defendants), Vincenzo Guglielmo, Plaintiff in Error.\nGen. No. 19,731.\n1. Peooess, \u00a7 8 \u2014sufficiency of summons in suit on penal bond. In an action of debt on a penal bond the summons should state the debt demanded.\n2. Jury, \u00a7 84 \u2014sufficiency of oath. Where a default is entered in an action of debt on a penal bond, a jury should be impaneled and sworn to assess plaintiffs damages; allowing a jury to assess damages upon being sworn, only \u201cto try the issues joined and a true verdict render according to the evidence\u201d is reversible error.\nError to the County Court of Cook county; the Hon. William F. Slater, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.\nReversed and remanded.\nOpinion filed June 15, 1914.\nRehearing allowed June 21, 1914 and opinion refiled July 20, 1914.\nVincent D. Wyman, Otto W. Jurgens and Charles E. Carpenter, for plaintiff in error.\nWilliam A. Jennings, for defendant in error.\nSee Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number."
  },
  "file_name": "0487-01",
  "first_page_order": 513,
  "last_page_order": 515
}