¶1delivered the opinion of the Court:
¶2This was debt, in the Jo Daviess circuit court, on a promissory note, with the common counts, brought by Bichard Bowden against William Bowden. The plea was nil debet, and tried by the court without a jury.
¶3The court heard the ease and found for the plaintiff, assessing the damages at two thousand and thirty-two dollars and forty three cents, and rendered judgment accordingly. The defendant brings the record here by writ of error, assigning as error a judgment in damages, when the action was debt.
¶4The only evidence before the court was the note sued on. Nothing was claimed on the common counts.
¶5It has been often decided by this court that when the action is debt and the judgment is in damages, it is erroneous, and judgments have been reversed for this cause, without considering the effect of sec. 56 of the Practice Act.
¶6There was no exception taken to the finding by the court, nor to the entry of the judgment. Had there been, it is quite certain the error complained of would not have occurred. The amount found due was precisely the amount of the note and accrued interest, so that no injustice has been done.
¶7Notwithstanding the repeated rulings of this court on this question, as no rule of property has been established by them, but of practice only, we are much inclined to hold such an objection to be merely technical, and as not affecting, in any degree, the merits of the case. If a party will be silent on the occurrence of such a mistake, one that would be corrected on the instant should the attention of the court be called to it, one that in nowise affects the merits of the controversy, he ought to be foreclosed of his right to assign it for error on an appeal to this court. Justice between the parties is the great desideratum, and it is for this that courts are organized. In reflecting upon prior adjudications of this court on this subject, we are compelled to believe justice has more than once been sacrificed to mere form, and after more thorough deliberation, and in view of the course of our legislation upon kindred topics, we have arrived at the conclusion that for mere technical errors like this we will not reverse,unless,by some motion, for a new trial, or in arrest of judgment, or by some other proper motion, the question shall be raised in the court below. The judgment is affirmed.
¶8Judgment affirmed.