Hesse v. Zaffke , 1913 Ill. App. LEXIS 1515 ( 1913 )

Mr. Justice Smith

delivered the opinion of the court.

On a trial in the Municipal Court of Chicago the plaintiff in error, hereinafter called plaintiff, secured. a verdict of a jury against the defendant in error, hereinafter called defendant, for $297.95 for labor and material claimed to have been furnished the defendant by the plaintiff. The court of its own motion entered an order as follows: “It is ordered by the court that the plaintiff remit the sum of ninety-seven ($97.00) dollars from the amount of the verdict entered in this cause,” and thereupon denied the defendant’s motion for a new trial and entered judgment against the defendant for $200. The action of the court in entering of its own motion the said order of remittitur is urged by the plaintiff: as reversible error.

Unless a party in whose favor, a verdict of a jury is rendered moves to remit therefrom, or consents thereto, the court can only grant a new trial or enter judgment on the jury’s verdict. It seems to us that this rule of law is so well established in this State it needs no discussion. It may be observed that if a court of its own motion can by an order subtract from the amount fixed by the jury in its verdict, it would seem that by the same authority and power the court of its own motion could by an order add thereto.

The payment of the judgment and costs by the defendant to the clerk of the court cannot, without the plaintiff’s acceptance thereof, defeat his rights in the case. The evidence is in no form presented in the transcript of record and the merits of the case cannot be determined. Even if the evidence were so presented, we fail to see how the defendant could avail himself thereof.

The judgment is reversed and the cause remanded with directions to either enter judgment on the verdict or grant a new trial in the cause.

Reversed and remanded with directions.