Peck v. Hubbard

McAllister, J. Ho replication having been filed, and the plaintiff not appearing when the case was called for trial, the court should have had the plaintiff called, and' on his failing to appeal’, given judgment as in case of nonsuit; or defendants might have taken a rule on plaintiff to reply instanter, if the case was properly on the trial calendar, and in default of compliance given like judgment. Heither course was pursued, but a jury was called and sworn to try the issues joined, when no issue had been joined by plaintiff, and he was not there, or anybody for him, to waive the want of replications. That was error. Seavy v. Rogers, 69 Ill. 534 ; Delano v. Bennett, 61 Ill. 83 .

But the verdict is not responsive to any issues which might have been properly raised upon the pleas, which were: (1), non cepit; (2), property in Treleaven; (3), justification by sheriff Kern under execution against Treleaven, averring property in the latter, subject to the writ. With a proper issue on first plea, the verdict should have been guilty or not guilty; on the second, property in- Treleaven or plaintiff; on the third, not that the property was in Kern, hut that the property was the property of the party defendant in the execution. Hanford v. Obrecht, 49 Ill. 146 .

The verdict only finds the property in Kern, and that it was held by virtue of the writ of execution set up in the defendants’. plea and offered in evidence; and that there was due bn the execution the sum of $729.13. After the verdict rendered, as before stated, defendants’ counsel, without notice to plaintiff, obtained a rule on plaintiff that he return the property replevied to Charles Kern in thirty days from the time of entering the rule, or, in default thereof, judgment be rendered upon said verdict. At the expiration of thirty days, defendant obtained another order, without any notice to plaintiff of the former order, or of the motion for this one, reciting that plaintiff had failed to return the property replevied to said defendants. In compliance with the above rule, it was ordered and considered by the court that Charles Kern recover of said Nathan Peek, plaintiff, for the use and benefit of said defendant, Nathan Hubbard, the sum of $729.13, being the amount found due by the jury on the execution aforesaid, with costs, and that he have execution therefor. There is neither precedent nor law for these proceedings.

Defendants’ counsel attempts to justify them under the clause in Sec. 22 of the Eeplevin Act: “’Or if the property was held for the payment of any money, the judgment may he in the alternative that the plaintiff pay the amount for which the same was rightfully held, with proper damages, within a given time, or make return of the property.” This clause was introduced into Section 22 of the Eeplevin Act, in the revision of 1874, R. S. 1874, ¡3. 853, and, so far as we know, has not been construed by the Supreme Court. It was evidently intended to relieve a plaintiff from the former imperative judgment for the return of all the goods back to the defendant, when the only matter affecting the plaintiff’s right of possession at the commencement of the suit, was that they were held for, or were subject to, the payment of a sum of money, which might be very much less than the value of the goods. The provision must have been intended, therefore, for the benefit of the plaintiffs in such suits. But in the case in hand, this provision was not followed in letter or spirit. A rule was made on plaintiff, of which he had no notice, that he return the goods replevied, in thirty days from that time to Charles Kern, or, in default thereof, judgment be rendered on the verdict. Then, because he had not returned them to the defendants, absolute judgment went against him in favor of Kern, for the full amount in the execution and interest. If it had heen a proper case under the provision in question, the judgment should have been that*he-pay the amount of the execution or" return the goods, which would be a substitute for the absolute judgment, de retorno. But by the judgment under consideration, the thing is reversed. A rule nisi is entered that he make return of them in thirty days, or pay the amount found due by the jury on the execution. Besides the other objections, this judgment was unauthorized by the statute, is without precedent and must be reversed and the cause remanded.

Reversed and remanded.