O'Brien v. Gooding

• Decision Date: 21 February 1902
• Citation: 62 N.E. 898,194 Ill. 466
• Parties: O'BRIEN v. GOODING et al.
• Court: Illinois Supreme Court

194 Ill. 466

62 N.E. 898

O'BRIEN

v.GOODING et al.

Supreme Court of Illinois.

Feb. 21, 1902.

Appeal from circuit court, Cook county; E. Hanecy, Judge.

Ejectment by John O'Brien against William S. Gooding and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.Levi Sprague, for appellant.

Edwin F. Abbott, for appellees.

This is an action of ejectment begun on April 2, 1900, by the appellant against the appellees, William S. Gooding, Charles T. Barnes, Marion A. Barnes, Eliza J. Evans, and others, to recover possession of two lots in Chicago, which, together with the buildings thereon, are known as 1646 and 1648 West Congress street. The defendants filed several pleas, and, among others, the plea of the general issue,-that neither they, nor either of them, were guilty of unlawfully withholding the possession of the premises claimed in the declaration. The cause, being at issue, was submitted to the court for trial without a jury; jury being waived by agreement. Evidence, oral and documentary, was introduced; and the court found the defendants not guilty of unlawfully withholding the possession of the premises described in the declaration, and that the rights to the possession thereof were in the defendants in fee simple. After motion for new trial was overruled, the court below rendered judgment that the defendants recover from the plaintiff below, John O'Brien, their costs and charges, and have execution therefor. The present appeal is prosecuted from the judgment so rendered in favor of the defendants below (appellees here). Both the plaintiff and defendants below claimed title through a common source, to wit, from William S. Gooding. The plaintiff introduced in evidence upon the trial below, without objection on the part of the defendants, a deed dated November 18, 1897, executed by Helen (Helena) M. Wells, by her attorney in fact, of Milwaukee, in the state of Wisconsin, conveying, for a consideration of $5,000, the property in question to William S. Gooding, which deed was acknowledged on March 1, A. D. 1898, and recorded in the recorder's office of Cook county on March 3, 1898. Plaintiff below also introduced in evidence a transcript of certain proceedings had before a justice of the peace in and for the county of Cook between John O'Brien Lumber Company, a corporation, plaintiff, and William S. Gooding and Marion A. Barnes, Edwin J. Bowes, Jr., and Eliza J. Evans, defendants, which showed that the suit before the justice was begun on July 13, 1898, summons as of that date having been issued by the justice summoning said defendants to appear before him on July 18, 1898, to answer the complaint of the John O'Brien Lumber Company, a corporation, for failure to pay a certain demand, not exceeding $200; that the summons was served upon the defendants William S. Gooding, Marion A. Barnes, and Edward (Edwin) J. Bowes, Jr.; that the case was continued to July 29, 1898, at which time it was dismissed, on motion of plaintiff, as to Marion A. Barnes, Eliza J. Evans, and Edwin J. Bowes, Jr.; that the case was tried before the justice on July 29, 1898; that upon that day, witnesses being sworn and evidence heard, the justice found that the defendant William S. Gooding was indebted to the plaintiff, the John O'Brien Lumber Company, in the sum of $145, ‘and lien as per former order; lien to date from April 13, 1898’; that judgment was thereupon rendered by the justice of the peace that the said plaintiff should have and recover of the defendant Gooding the sum of $144 and costs of suit, ‘and judgment ordered and entered therefor July 29, 1898’; that thereupon immediate execution was ordered and issued to a constable, who made a return on July 30, 1898, that the defendant Gooding had no personal property in his county whereof he could cause to be made the judgment and costs, or any part thereof; that ‘above lien [is] on lots 8 and 9, etc., * * * and known as 1646 and 1648 West Congress street.’ The certificate attached to the transcript of the justice bears date August 12, 1898, and certifies that such transcript is truly copied from the files and books of his office in the case between the John O'Brien Lumber Company, plaintiff, and William S. Gooding, defendant, and that the same contains a true copy of the original summons, the return of the officer thereon, the judgment, and the execution issued thereon, with the return of the officer upon the same, and a copy of his docket in the case, and of each process issued by him in said cause, and the return of the officer thereon. This certificate by the justice was addressed to the clerk of the circuit court of Cook county, and the transcript was filed by said clerk and recorded on August 13, 1898. Thereupon, on August 16, 1898, execution was issued by the clerk of the circuit court out of that court to the sheriff of Cook county, and received by him on August 25, 1898. The sheriff made return upon the execution that on August 29, 1898, he levied upon all the right, title, and interest of the defendant William S. Gooding in and to said lots 8 and 9, and that by virtue of the execution and levy he did on October 25, 1898, sell the property for the sum of $188.62 to John O'Brien. The sheriff issued a certificate of sale or purchase to John O'Brien, certifying that he would be entitled to a deed to the lots so sold on January 26, 1900, unless the same should be redeemed. On January 26, 1900, the sheriff of Cook county issued a sheriff's deed to John O'Brien, conveying to him said lots 8 and 9, etc., and known as Nos. 1646 and 1648 West Congress street, in Chicago; reciting in said deed that the John O'Brien, Lumber Company did on June 29, 1898, before a justice of the peace of Cook county, recover a judgment against William S. Gooding for $144 and costs, upon a transcript of which judgment, filed for record in the circuit court of Cook county on August 13, 1898, an execution was issued, dated August 16, 1898, directed to the sheriff of Cook county to execute, and by virtue whereof the sheriff levied upon said premises, and, having advertised the time and place of sale, struck off and sold the same to John O'Brien for $188.62 on October 25, 1898. The defendants (appellees here) introduced in evidence a deed dated April 25, 1898, and acknowledged and recorded on April 26, 1898, executed by William S. Gooding, bachelor, conveying, for a consideration of $25,000, to Marion A. Barnes and Eliza J. Evans, of Chicago, said lots 8 and 9, with the improvements thereon, subject to a trust deed securing a note for $9,000, and to another trust deed to secure four notes of $600 each.

MAGRUDER, J. (after stating the facts).

The appellant, upon the trial below, relied upon the sheriff's deed, dated January 26, 1900, and described in the statement preceding this opinion. The appellees reliedupon the deed, dated April 25, 1898, executed by William S. Gooding to Marion A. Barnes and Eliza J. Evans. The latter deed was dated and recorded before the sheriff's deed upon which the appellant relied. The suit before the justice was not begun until July 13, 1898. The transcript of the proceedings before the justice was not filed in the circuit court of Cook county until August 13, 1898.

Section 1 of article 12 of the act in relation to justices of the peace, etc., provides that, ‘when it shall appear by the return of the execution first issued as aforesaid, that the defendant has not personal property sufficient to satisfy the judgment and costs within the county in which judgment was rendered, and it is desired by the plaintiff to have the same levied on real property in that or any other county, it shall be lawful for the justice to certify to the clerk of the circuit court of the county in which such judgment was rendered, a transcript, which shall be filed by said clerk, and the judgment shall thenceforward have all the effect of a judgment of the said court, and execution shall issue thereon, out of that court, as in other cases.’ 2 Starr & C. Ann. St. (2d Ed.) p. 2454. In the case at bar the transcript, filed with the clerk of the circuit court on August 13, 1898, recited the existence of the judgment before the justice, the issuing of an execution thereon, and the prescribed return thereof by the constable; and hence the filing and recording of the transcript in the office of the clerk of the circuit court created a lien, and authorized the issuance of the execution by the circuit clerk. We have held that, where the transcript recites the execution and return as required by state, the filing and recording of it in the office of the clerk of the circuit court create a lien. Wooters v. Joseph, 137 Ill. 113, 27 N. E. 80,31 Am. St. Rep. 355. If appellant obtained no lien until the transcript was filed with the clerk of the circuit court, on August 13, 1898, then the appellees Marion A. Barnes and Eliza J. Evans obtained the better title, because the deed to them was executed and recorded long before August 13, 1898, to wit, on April 25 and 26, 1898.

It is contended, however, on the part of appellant, that the claim of $144, for which the John O'Brien Lumber Company brought suit before the justice of the pease against William S. Gooding, Marion A. Barnes, Edwin J. Bowes, Jr., and, Eliza J. Evans, was for lumber sold and delivered by the lumber company to William S. Gooding at his request on a contract made with him, dated Apri...