Towarzystwa Litewsko Polskiego Ostrobramy v. Barczaitis , 139 Ill. App. 94 ( 1908 )

Mr. Presiding Justice Baker

delivered the opinion of the court.

Defendant in error contends that the appearance in writing contained in the transcript, and thereby shown to have been filed two days before the.default and judgment, is not a part of the record proper, and such appearance not having been made a part of the record by the bill of exceptions, the record fails to show an appearance by the defendant. In support of this contention are cited Van Cott v. Sprague, 5 Ill. App., 99, and Schmidt v. Skelly, 9 id., 532. In neither of those cases was the question whetlier an appearance was part of the record proper involved.

Thompson v. Emmert, 15 Ill., 415, was an action upon a Pennsylvania judgment against Nelson, Emmert and Campbell. The record offered in evidence showed that Nelson only had been served with process, but that an attorney entered a general appearance for Emmert and Campbell, and it was said, p. 416: “Was Emmert bound by the judgment in Pennsylvania? According to the decisions in this court the record afforded conclusive evidence that his appearance was entered by an attorney.” We think that the appearance became a part of the record proper by the mere act of filing it.

The default of the defendant for failing to appear was irregular. Where the defendant has entered an appearance, but has failed to plead, the proper form of judgment is by nil ¿Licit and not by default. But for this irregularity alone the judgment should not be reversed.

The defendant, having entered its appearance, was entitled to notice of the proceeding to assess damages, and it was reversible error to proceed to assess damages without notice to it. American Mail Order Co. v. Marsh, 118 Ill. App., 248, and cases there cited;

The contention of the defendant in error that it will be presumed that such-notice was given cannot be sustained. Such notice could not have been given prior to March 7, for no judgment by default or by nil dicit had then been entered. The entry of judgment recites the default of the defendant for failure to appear “wherefore the plaintiff ought to recover his damages, etc., and thereupon reference is had to the court to assess plaintiff’s damages, and the court now here, after hearing etc., assesses plaintiff’s damages at, etc.,” and then follows the consideratum est all in a single order.

For the error indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.