¶1December 17, 1886, the appellee sued out of the Circuit Court a summons against the appellant and another
¶2The summons was not served, and such proceedings were had that a plumes was sued out on December .7, 1887, which was served upon the appellant only, the next day. April 24,1889, by agreement of the parties a declaration was filed mono pro tunc, as of December 21, 1887. The appellant liad filed pleas after various extensions of time, Hay 11, 1888, so that probably the original declaration has been filed December 21,1887, and lost.
¶3The courtis asked to reverse the judgment upon divers technical objections, to which it would be a sufficient answer to say that they are based upon matter that can only be seen here by being incorporated, as it is not, in a bill of exceptions.
¶4The declaration was filed in time; ten days before the second term after the summons was served. Herring v. Quimby, 31 Ill. 153. The announcement by the appellee when the trial began that he should rely solely upon the count upon an account stated, was an amendment by abandoning all his bills of particulars for other causes of action, and if the appellant then asked for a continuance on the ground of surprise he should have supported his application with an affidavit showing how he was surprised. Chi. & Pac. R. R. v. Stein, 75 Ill. 41; Hills v. Executors, 76 Ill. 381. The misprision of the clerk in reciting on the record that motions were made by the defendants, did not bring into court the other defendant, who had not been served with the process, nor had pleaded; and even without the subsequent amendment by the court changing the plural to the singular, did not furnish any ground for the appellant’s objection that, the judgment should be against all or none.
¶5On motion for a new trial, it was too late, if any variance there was, to make an objection on that ground. Mattoon v. Fallon, 113 Ill. 249; Fries v. Fagan, 23 Ill. App. 613. The question of fact is settled, and no doubt rightly, by the verdict of the jury, and the judgment is affirmed.
¶6Judgment affirmed.
¶7Waterman, J., took no part in this ease.