Monroe County IL Archives Court.....Scott, V Cromwell 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 27, 2008, 11:21 pm

Source: Reports Of Cases Illinois
Written: 1819-31

Jehu Scott, Appellant, v. John Cromwell, Appellee. 

Appeal from Monroe.

Where the plaintiff amends in matters of form only, the defendant is not, for 
that reason, entitled to a continuance as a matter of course.

The defendant in a court below, the appellant here demurred specially to the 
plaintiff's declaration, for informalities therein. The court sustained the 
demurrer, and gave plaintiff leave to amend, whereupon the defendant moved the 
court for a continuance, which motion the court overruled. To reverse this 
opinion, this appeal was taken.

Opinion of the Court. Where the plaintiff amends in matters of form only, the 
defendant is not, for that reason, and as a matter of course, entitled to a 
continuance. He has however, the right to plead de novo. The judgment of the 
court below must be affirmed. (1)

Judgment affirmed.

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(1.) The doctrine is well settled that an amendment of a mere formal matter 
will not entitle a party to a continuance, while an amendment in substance 
will work a continuance without cause being shown therefor by the opposite 
party. Rountree v. Stuart, post. Covell et al. v. Marks, 1 Scam., 525. Russel 
et al v. Martin, 2 Scam., 493. Webb v. Lasater, 4 Scam., 548. Ills. Marine & 
Fire Insurance Co. v. Marseilles Manufacturing Co., 1 Gilm., 236. Hanks v. 
Lands, 3 Gilm., 227. O. & M. R. R. Co. v. Palmer et al., 18 Ills., 22. 

Courts may allow amendments on the trial, if not against positive rules, to 
secure the ends of justice, if the opposite party is not thereby taken by 
surprise; if so, a continuance may be allowed. Miller v. Metzger, 16 Ills., 
390. 

It is not error to permit clerical errors to be amended on trial. Hargrove v. 
Penrod, post.

Since the foregoing note was prepared, a decision of the Supreme Court has 
been published in which they use the following language. "By the uniform rule 
of practice, the court has no power to permit an amendment of the declaration, 
in a matter of substance, without granting a continuance if desired by the 
defendant; nor has the court any power, after verdict, to permit amendments of 
substance, except upon terms of the payment of costs, setting aside the 
verdict, and granting a new trial. Where such amendment is made, it becomes 
essentially a new declaration, which the party has a right to prepare to 
defend." Brown et al. v. Smith et al, 24 Ills., 196.

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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