We prefer to assume that if the judge had known of defendant's jury demand, he would not have heard the case without a jury. (See Heinsius v. Poehlmann, 282 Ill. App. 472; Frank v. Newburger, 298 Ill. App. 548, 19 N.E.2d 147.) Therefore, we conclude that the trial judge did not know the jury demand existed; he must have assumed the case was nonjury when that status did not exist. An error of fact occurs when some fact which really exists is unknown, or some fact is supposed to exist which really does not. ( Mowatt v. Wright (N.Y. 1828), 1 Wend. 355, 19 Am. Dec. 508.) For example, in Wagner v. Shelly (Ct. App. Mo. 1948), 210 S.W.2d 394, a clerk erroneously placed a civil suit for damages on the equity and jury waived docket.

Sceva Steel Buildings, Inc. v. Weitz, 66 Wn.2d 260, 401 P.2d 980; Klehm v. Klehm, 41 Ill. App.2d 423, 191 N.E.2d 69. This right is protected by section 34 of the Civil Practice Act and by Supreme Court Rule 7-1 which provide that in case of default, if relief beyond that prayed for in the pleadings is sought, whether by amendment, counterclaim or otherwise, notice shall be given the defaulted party. If a party in default is not notified of an amendment changing the complaint in a matter of substance, he may challenge the ensuing decree by means of a section 72 petition. Carr v. Edwards, 12 Ill. App.2d 369, 139 N.E.2d 836; Western Smelting Refining Co. v. Benjamin Harris Co., 302 Ill. App. 535, 24 N.E.2d 255; Dahlin v. Maytag Co., 238 Ill. App. 85; Frank v. Newburger, 298 Ill. App. 548, 19 N.E.2d 147. [7, 8] The third point made by defendants-appellants is that the Mechanic's Lien Act contemplated that there should be but one suit; that is, that all persons known to have any legal or equitable claim should be made parties so that the watermelon might be cut in proper portions.

He is entitled to have such a judgment set aside after term time, and it may be done by coram nobis under section 72 of the Civil Practice Act. Frank v. Newburger, 298 Ill. App. 548, followed with approval in Nikola v. Campus Towers Apt. Bldg., 303 Ill. App. 516; Rapp v. Goerlitz, 314 Ill. App. 191; Simpson v. Anderson, 305 Ill. 172, In Bellchambers v. Ebeling, 294 Ill. App. 247, the fact of infancy was brought to the court's attention at the time of the hearing of a motion for new trial, and the court then appointed a guardian ad litem for such minor. Though the trial court filed a certificate that nothing had been brought to the knowledge of the court which would tend to indicate that the minor had been deprived of any defense, rights or privileges, this court, in reversing the judgment, held that such an appointment does not comply with the reasoning of the courts that an appointment should be made for the purpose of protecting the interests of the minor.

This court in the case of Dahlin v. Maytag Co., 238 Ill. App. 85, held that if an amendment to the pleadings was made after default has been entered against the defendant, the effect of such amendment is to automatically set aside the default and order pro confesso, and before a judgment can be entered, the defendant must be ruled to plead. If such rule is not entered, the judgment was erroneously ordered. This case was cited with approval in Frank v. Newburger, 298 Ill. App. 548. To the same effect is Odell v. Levy, 307 Ill. 277, 281.

" It seems fundamental to us, that any motion to correct errors should not only point out the errors of fact committed, but affirmatively show in the prayer for relief in what way those errors could, as a matter of fact, be corrected. In the case of Frank v. Newburger, 298 Ill. App. 548, 19 N.E.2d 147, cited in defendant's brief, several defendants therein filed their verified motion under section 72 of the Civil Practice Act, to vacate and set aside a decree of foreclosure, and all orders entered subsequently; and the prayer therein was that defendants be given leave to defend the amended bill of foreclosure. In the instant case, the only prayer of the petition is that the decree and subsequent orders be vacated and set aside.

Prior to the adoption of the Civil Practice Act, the Supreme Court held that "the statutory motion does not apply in cases of chancery." In the recent case of Frank v. Newburger, 298 Ill. App. 548, this court was asked to decide whether a motion under section 72 of the Civil Practice Act would be proper in a chancery case. This court, speaking through Mr. Justice O'CONNOR, said: