Opinion of the Court by
Justice Lockwood.
The court are of opinion, that the appellant has misconceived his remedy. If the judgment before the justice was rendered for too great an amount, the remedy was an appeal to the circuit court. The plaintiff having neglected to take an appeal, can not now be relieved in equity. The court had a right to dismiss the bill, and dissolve the injunction, without compel ling an answer from all the defendants. The judgment is affirmed with costs.
Cowles, for appellant.
Blackwell, for appellee.
Judgment affirmed.
In Sims v. Hugsby, post, a default was entered against the defendant, and the clerk ordered to assess the damages. The clerk, in making the computation, overlooked a credit indorsed on the note sued on, and thereby entered the judgment for more than was due. The supreme court, in that case, said: "If the clerk, in the discharge of that duty, (assessing damages,) should allow either too much or too little, the court, under whose direction it is made, will, upon motion, correct it. To that court, then, and not to this, the application should be made.” And again in Wilcox v. Woods et al., 3 Scam., 51, “It is alleged that the court erred in rendering judgment for a larger amount than the note, as set out in the declaration, shows the plaintiff entitled to recover. This can not be assigned for error. The proper remedy of the party was by motion in the court below, where the error could have been corrected.” This was again repeated in Smith v. Lusk, 3 Scam., 411. But I can not satisfy myself that the principle intended to be established by these cases is correct. In the cases referred to, the decisions were correct so far as they related to those particular cases, because the notes not being a part of the declaration, and not being preserved in any manner in the record, the court could not see that the assessments were too large. But suppose a note is set out in hcec verba in the declaration, thereby making it a part of the declaration, and the record shows the judgment to be for more than the plaintiff sued for, why is it not error that the supreme court can reform ? Suppose a verdict to be found by a jury; the evidence is preserved by a bill of exceptions; and from that the court sees the plaintiff has obtained a verdict to which he was not entitled, and will set it aside without hesitation. And why? Because the record shows the verdict is too large. Now if the clerk, instead of a jury, assess the damages, and commits an error, and the record shows the error, why is it not the duty of the appellate court to correct it as well as if it had been the fault of a jury ? Can there be any reason why the court will interpose to correct the errors of a jury, and not of a clerk, when the record in both cases shows the error ?
In a late case, Sexton v. School Com’r, 19 Ill., 51, the court in fact decided in accordance with these views, although the report does not show that this question was raised. The action was on a note executed to the school commissioner. A default was entered, and the clerk in assessing damages included twelve per cent, interest, and this was reversed, although the error was not preserved in the record in any other manner than the statement made in the declaration, and the judgment. See also, 6 Mass. Rep., 272. 2 Wash. Rep., 173.
An injunction may be dissolved, on motion, before answer, where there is no equity on the face of the bill. Richard et al v. Prevo, post. Puterbaugh v. Elliott et al., 22 Ill., 157. Beaird v. Foreman, post.