Stowell v. Satorius, 413 Ill. 482. The case at bar is distinguishable from Oetting v. Graham, 373 Ill. 247, cited by defendant. In that case an original complaint alleged a statutory dedication of a right of way. The proof failed to show such a right of way but tended to show a common-law dedication of a way over other property. It was held that the plaintiff could not be permitted to amend his complaint to correspond with the proof without giving defendants an opportunity to present additional testimony on the issues made by the amended complaint.
In this case the allegations of the complaint were that the plaintiff conveyed the property in question to the defendant by a quitclaim deed which, although appearing to be absolute on its face, was not so intended by the parties in that they all agreed at that time that the deed would be additional security for mortgage indebtedness. The Appellate Court held that it is elemental that where a plaintiff fails to prove a cause of action made by his complaint, he is not entitled to recover, although the facts actually proved would have entitled him to relief had his bill been framed on a different theory, citing Oetting v. Graham, 373 Ill. 247. The Steinhauer case is not determinative of the facts here and cannot be extended to the lengths to which the appellants contend it should be carried. Examining the decision carefully it is apparent that, while the entire complaint was based upon an oral agreement, there was absolutely no proof in the record to prove any agreement at all.
III. The lower court erred in overruling the appellants' motion to strike the allegations of the declaration as to Leggett's drinking habits and in subsequently admitting testimony under these allegations as to Leggett's drinking habits over the objection of appellants because it was not alleged in the declaration that Leggett's drinking was the proximate or was a contributing cause of the accident. Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318; Ozen v. Sperier, et al., 150 Miss. 458, 117 So. 117; Von Goerlitz v. Turner, 65 Cal.App.2d 425, 150 P.2d 278; Finley v. Coastal Chevrolet Corporation, 64 Ga. App. 489, 13 S.E.2d 683; Oetting v. Graham, 373 Ill. 247, 24 N.E.2d 886. IV. The lower court erred in overruling the motion of the defendants for a new trial on the ground that the verdict accepted by the clerk was not the true verdict of the jury.
Edwards calls attention to Rule 28 of the Municipal Court of Chicago in force in 1955 providing that except in case of defaults, the prayer for relief shall not be deemed to limit the relief obtainable, and to a similar provision in the Civil Practice Act. In support of his position that on a default the relief granted cannot exceed the specific prayer of the complaint, appellant cites Kryl v. Zelezny, 290 Ill. App. 599; Western Smelting Refining Co. v. Benjamin Harris Co., 302 Ill. App. 535; and Oetting v. Graham, 373 Ill. 247. The provision of Rule 33 of the Municipal Court of Chicago that any demand by a defendant against a co-defendant, may be pleaded as a cross-demand in any action, does not exclude the elemental requirement of notice of the filing of a counterclaim to a co-defendant who has defaulted. It will be observed that a rule requires that a true copy of the statement of claim shall be served on each defendant with the summons.
( Leitch v. Sanitary Dist. of Chicago, 386 Ill. 433.) It is elemental that where a plaintiff fails to prove the cause of action made by his complaint he is not entitled to recover, although the facts actually proved would have entitled him to relief had his bill been framed upon a different theory. ( Oetting v. Graham, 373 Ill. 247.)"
( Leitch v. Sanitary Dist. of Chicago, 386 Ill. 433.) It is elemental that where a plaintiff fails to prove the cause of action made by his complaint he is not entitled to recover, although the facts actually proved would have entitled him to relief had his bill been framed upon a different theory. ( Oetting v. Graham, 373 Ill. 247.) The rule that proofs without corresponding allegations are in equity as unavailing as allegations without proofs is familiar to every lawyer. ( Angelo v. Angelo, 146 Ill. 629.)
The issue is made by the complaint and the evidence must be limited by it, and the issues cannot be enlarged by oral claims or affidavits filed in the case. ( Walter Cabinet Co. v. Russell, 250 Ill. 416; Oetting v. Graham, 373 Ill. 247; In re Estate of Shanks, 282 Ill. App. 1. ) While the law does not require the materiality of the evidence shall appear from an inspection of the pleadings alone ( Denison Cotton Hill Co. v. Schermerhorn, supra.) appellant has made no showing that the production of the lease is material or relevant to the issues.