Opinion
Gen. No. 44,310.
Opinion filed February 16, 1948. Released for publication March 2, 1948.
1. FORCIBLE ENTRY AND DETAINER, § 56 — requisites of statement of claim. In an action of forcible detainer, wherein defendants were sued in municipal court as "Mr. and Mrs.", the statement of claim conformed to the requirements of the statute (Ill. Rev., Stat. 1947, ch. 57, par. 5; Jones Ill. Stats. Ann. 109.267).
See Callaghan's Illinois Digest, same topic and section number.
2. FORCIBLE ENTRY AND DETAINER, § 62fn_ — waiver of defects in statement of claim. Although defendants were improperly sued as "Mr. and Mrs.", where personal service was had and their appearance entered without objection as to names, judgment against them was binding.
3. APPEAL AND ERROR, § 1267fn_ — presumption of correctness of rulings on facts. Where defendants in a forcible detainer action in municipal court were sued as "Mr. and Mrs.", and it was claimed on appeal that the action should have been dismissed as to her; but no transcript of proceedings was filed to show character of tenancy, the presumption on appeal was that the court ruled correctly on the facts.
4. HARMLESS AND PREJUDICIAL ERROR, § 284fn_ — enjoyment of benefits despite error complained of. Where defendants appealed from adverse judgment in forcible detainer action, and the court erroneously struck portion of judgment order staying execution for 60 days after the appeal was perfected, defendants could not complain since the 60 days had expired and defendants had enjoyed all the benefits of the stay order by their appeal.
(O'CONNOR, J., concurs.)
Appeal by defendants from the Municipal Court of Chicago; the Hon. JAY A. SCHILLER, Judge, presiding. Heard in the first division of this court for the first district at the December term, 1947. Affirmed. Opinion filed February 16, 1948. Released for publication March 2, 1948.
HOWARD C. GOLDMAN, of Chicago, for appellants.
GEORGE A. GORDON, of Chicago, for appellee.
Defendants appeal from a judgment in a forcible detainer action ousting them from an apartment.
The action was brought against "Mr. and Mrs." Tenenholtz. The summons was served upon Mrs. George Tenenholtz, "herein sued as Mrs. Tenenholtz," personally, and upon Mr. George Tenenholtz, "herein sued as Mr. Tenenholtz," at his usual place of abode by delivering a copy to Mrs. George Tenenholtz, his wife. Defendants appeared by counsel, a trial was had and, after the adverse judgment was entered, notice of appeal was served by "Mr. and Mrs. Tenenholtz" and an appeal bond filed reciting the recovery of a judgment "against the above bounden Mr. and Mrs. George Tenenholtz." This bond is signed by George Tenenholtz and a surety company. Defendants attack the statement of claim, which conforms to the requirement of the statute (Ill. Rev. Stat. 1947, ch. 57, par. 5 [Jones Ill. Stats. Ann. 109.267]). This objection is not tenable. Defendants were improperly sued as Mr. and Mrs. Tenenholtz, but personal service was had upon them and they have entered their appearance without objecting to the name under which they were sued. The judgment is binding. Goodkind v. Bartlett, 153 Ill. 419, 423.
Objection is made that the court should have dismissed the action as to Mrs. Tenenholtz, but as no transcript of proceedings has been filed and there is nothing in the record to show the character of the tenancy under which defendants were in possession, we must presume that the court ruled correctly on the facts, and this objection is not tenable.
Although the court erroneously struck out the portion of the judgment order staying the writ of execution for a period of 60 days after appeal had been perfected, defendants cannot complain as the 60 days from the entry of judgment has expired and defendants have enjoyed all the benefits of the stay-order by their appeal.
The judgment is affirmed.
Affirmed.
O'CONNOR, J., concurs.
FEINBERG, J., took no part.