Kreuchi v. Dehler

• Decision Date: 31 January 1869
• Citation: 50 Ill. 176,1869 WL 5196
• Parties: CHRISTIAN KREUCHIv.FREDERICK DEHLER.
• Court: Illinois Supreme Court

50 Ill. 176

1869 WL 5196 (Ill.)

CHRISTIAN KREUCHI

v.FREDERICK DEHLER.

Supreme Court of Illinois.

January Term, 1869.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

This was an action of trover, commenced before a justice of the peace of St. Clair county, by Kreuchi, against Dehler, to recover for certain personal property of the plaintiff, alleged to have been taken by the defendant as a constable, under an execution against another person.

The cause was removed into the circuit court by appeal, where a trial resulted in a judgment for the defendant.

The plaintiff brings the cause to this court by writ of error. The remaining facts in the case are presented in the opinion of the court.

Mr. WM. WINKELMAN, for the plaintiff in error.

Messrs. KASE & WILDERMAN, for the defendant in error.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

The only question in this case is, whether the finding of the magistrate on the trial of the right of property, is a defense to this action, brought by the claimant of the property against the constable. Kreuchi gave notice to the constable that he claimed the property, whereupon the constable appointed a time and place for the trial. On the day fixed, the parties appeared in person and by attorney before the justice who was to hold the trial, and there agreed to waive a jury, and submit the case to the justice. This was done, and he found against the claimant, and so entered judgment. The claimant prosecuted no appeal, but has now brought this suit against the constable for selling the property.

The circuit court held the trial and judgment before the justice to be a bar, and, we think, rightfully. It is true, the statute provides that “the verdict of the jury” shall be an indemnity to the officer, and directs that the jury shall consist of six persons. Yet the statute must be understood as absolutely prescribing that number only in cases where the parties are not present to agree upon a less number. Neither is the provision in the statute authorizing the constable to summon not exceeding twelve jurors, by consent, to be considered as prohibiting the parties from agreeing upon less than six. The legislature undoubtedly intended to prevent more than twelve persons being called from their business to serve upon a jury, but to allow the parties to take any number under twelve upon which they could agree. We cannot suppose they intended to...