#### Augustus W. Thompson and Robert Coleman, Plaintiffs in Error, v. John N. Turner, Defendant in Error.

ERROR TO WINNEBAGO COUNTY COURT.

A judgment by default may be rendered against a defendant regularly served with process for an amount greater than is stated in the summons, if within the damages claimed by the declaration.

An amendment of the summons by making the amount claimed by it, correspond with the pracipe, is proper.

Advantage cannot be taken on error, of a variance between the writ and declaration, when the parties were regularly defaulted in the court below.

This was an action of assumpsit. The praecipe was filed on the 26th May, 1858, praying a summons in damages $600.

On the same day a summons was issued, “ to the damage of the said plaintiff, as he says, one hundred dollars.” The declaration was filed on the 26th May, containing a special count on a promissory note for $400, and also the common counts—ad damnum, $600.

The summons was served on both defendants, on the 27th of May.

The defendants did not appear.

Their default was taken on the 8th of J une, and damages assessed by the clerk, at $428.20, for which judgment was rendered. At the same term, on the 16th of June, on motion of the plaintiff, leave was granted to amend the summons; but it was not amended.

The errors assigned are, that the court erred in rendering judgment against the defendants below, for a greater sum than was claimed in the summons.

That the court erred in making the order granting leave to amend the summons, without notice to the defendants below.

And that the court erred in rendering judgment in said cause.

J. L. Loop, for Plaintiffs in Error.

Breese, J.

It is insisted by the plaintiffs in error that a judgment by default, the defendants not appearing although duly served with process, could not be rendered against them for a greater amount than is claimed in the summons. No authority is cited for this position, and the doctrine seems to be that the plaintiff’s declaration is the limit of his recovery. He can recover no more damages than he has laid in his declaration. 1 Ch. Pl. 339.

The prascipe in this case directed the clerk to issue a sum*390rnons laying the damages at six hundred dollars. Through his negligence, the damages claimed in the summons were but one hundred dollars. The damages in the declaration were laid at six hundred dollars. Here was a variance simply, between the declaration and summons, of which the defendants might have availed, they having been regularly served with the summons. This they did not do, and they cannot on error, take advantage of this variance.

It is cured by the eleventh section of the statute of Amendments and Jeofails (Scates’ Comp. 252.) There has been a writ and service regularly issued and made, and we hold in such case, by virtue of the omnipotent act cited above, a judgment rendered under such circumstances, where no greater damages are recovered than are declared for, cannot be reversed or set aside.

The court below, did right to allow an amendment of the summons, so that it should conform to the praecipe. So would this court allow it upon appeal or writ of error, it being a plain misprision of the clerk. Same statute, secs. 2 and 3, ibid. 250.

The judgment is affirmed.

Judgment affirmed.