Bunker v. Green
| Decision Date | 30 September 1868 |
| Citation | 1868 WL 5090,48 Ill. 243 |
| Parties | DANIEL BUNKER, Jr., et al.v.JOSEPH H. GREEN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding. The facts in this case are fully presented in the opinion.
Messrs. KNOWLTON & JAMIESON, for the appellants.
Mr. E. W. EVANS, for the appellee.
This was an action of trespass de bonis asportatis, brought by appellee against appellants, in the Cook Circuit Court. It appears that B. F. Green and Thomas M. Ackerly, who were doing business under the firm name of F. B. Green & Co., sold their stock in trade to Joseph H. Green. They being indebted to Daniel Bunker, he sued out a writ of attachment, and placed the same in the hands of the sheriff, who caused it to be levied upon a portion of the goods previously sold to Joseph H. Green, alleging that the sale by Green & Ackerly was made with intent to hinder, delay and defraud their creditors. Joseph H. Green thereupon brought this suit against Bunker, the Sheriff, and his deputy, and George W. Ramsdell. Several pleas were filed presenting the general issue and justification under the writ of attachment. To one or more of the pleas of justification no replication was filed, nor issue joined. A trial was had upon these pleas before the court and a jury, resulting in a verdict in favor of plaintiff below for $828 damages. A motion for a new trial was entered, but overruled by the court, and judgment was rendered upon the verdict, and the case is brought to this court by appeal, and a reversal asked on various grounds.
Among other grounds, it was urged that it was error to try the cause without issue being joined on the pleas of justification. By failing to file replications to these pleas, plaintiff was in a default, and could have been put under a short rule for replications, had defendants asked, and had he failed to comply with such rule, his suit could have been dismissed; but defendants failed to ask it, and chose to go to trial on the pleas as they then stood, and a trial was had, in all respects, as the bill of exceptions discloses, precisely as though issues had been formed by proper replications. We can perceive no injury sustained by the defendants, nor have they pointed out any in their argument. Although irregular, we must hold, that, by going to trial, defendants waived the objection, as they fail to show that it worked them any injury.
It is again urged, that the court below erred in rendering judgment nunc pro tunc, after the death of plaintiff. It appears that upon the coming in of the verdict, a motion for a new trial was entered, but was not decided until in the following January, when it was overruled, and judgment rendered as of the previous October term, at which the cause was tried. In the 2d volume Tidd's Practice, 846, 1st Am. Ed., it is said: “And if either party die after a special verdict, and pending the time taken for argument or advising thereon, or on a motion in arrest of judgment, or for a new trial, judgment may be entered, at common law, after his death, as of the term in which the postea was returnable, or judgment would otherwise have been given nunc pro tunc, that the delay arising from the act of the court may not turn to the prejudice of the party.” This seems to be the long and well settled rule of practice under the common law, and is not unreasonable or unjust in its application. A party should not be deprived of his rights because the tribunals of justice delay in its administration.
Section 7 of the chapter entitled “Abatement,” declares that suits which survive shall not abate by the death of a sole plaintiff, before final judgment. At common law, actions of tort did not survive to the executor, but by the 3 Edwd. 3 ch. 7, it was enacted that actions of trespass, for injuries to personal property, should survive, and executors might recover damages for such injuries; and this act being prior in date to the fourth year of the reign of James the First, and being...
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