Gallatin County IL Archives Court.....Brazzle, V Usher 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 27, 2008, 11:06 pm

Source: Reports Of Cases Illinois
Written: 1819-31

DECEMBER TERM, 1820.

George Brazzle and James Hawkins, Plaintiffs in Error, v. David Usher, 
Defendant in Error.

ERROR TO GALLATIN.

If parties appear and go to trial without a plea being put in, it is such an 
irregularity as will be cured, after verdict, by the statute of amendments.

Usher brought an action of trespass, vi et armis, against Brazzle and Hawkins, 
in the Gallatin circuit court, and recovered a verdict and judgment against 
them. To reverse which judgment, they sued out a writ of error, and assigned 
for error, that there was no plea filed in the cause, and that a trial was had 
without a plea. It appears from the record, that the parties, by their 
attorneys, were present at the trial, and made no objections to the 
proceedings as they were.

Opinion of the Court. The appearance of the parties cured the defect, if any, 
arising from the failure to file a plea. The statute of amendments will apply 
in this case, to cure the irregularity. The judgment of the court below must 
be affirmed. (1)

Judgment affirmed.

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(1) If one of several pleas be not answered, and the parties go to trial 
without any objection on the part of the defendant, the irregularity is cured 
by the verdict. Ross v. Redick, 1 Scam., 74. Armstrong v. Mock, 17 Ill., 166. 
Kelsey v. Lamb, 21 Ill., 559. Stumps v. Kelley, 22 Ill., 140. Puterbaugh v. 
Elliott et al., id. 157.

A declaration contained two counts, upon one of which there was an immaterial 
issue, and the other was wholly unanswered. After judgment for plaintiff the 
defendant assigned for error, that judgment was entered on the immaterial 
issue, and that the second count was unanswered. Upon these assignments of 
error the court said: "Will the non-joinder of an issue on the second count, 
or the immaterial issue, justify the reversal of the judgment for such causes? 
We think not: the statute of amendments and jeofails has provided against any 
error arising from such causes, and the defendants can not now assign either 
for error." Graham v. Dixon et al., 3 Scam., 118. The grounds upon which this 
decision would seem to be based are—that going to trial without a plea was an 
error in favor of the defendant, and of which he could not afterwards 
complain. Kitchell v. Bratton, 1 Scam., 301. Arenz v. Reihle et al., id., 340. 
Bailey v. Campbell, id., 47. Clemson v. State Bank, id., 45. Thorn v. Watson 
et al., 5 Gilm., 27. On the count which was unanswered the plaintiff might 
have taken judgment by default, and the defendant was not injured by his not 
doing so.

In the following cases defects have been held to be cured by verdict. State 
Bank v. Batty, 4 Scam., 201. Hamilton et al. v. Cook County, id., 527. Selby 
v. Hutchinson, adm'r, 4 Gilm., 327. Sullivan v. Dollins, 13 Ill., 88. Burst v. 
Wayne, id., 599. Spencer v. Langdon, 21 Ill., 192. Loomis v. Riley, 24 Ill., 
307.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

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