Corbin v. Pearce
| Decision Date | 31 January 1876 |
| Citation | 81 Ill. 461,1876 WL 10026 |
| Parties | WILLIAM P. CORBINv.JAMES W. PEARCE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Moultrie county; the Hon. C. B. SMITH, Judge, presiding.
Messrs. MEEKER & HAMLIN, for the appellant.
Messrs. STEELE & HUGHES, for the appellee.
This was an action of replevin, brought by appellant, before a justice of the peace, against appellee, for a portion of a stock of goods, and carried to the circuit court by appeal, and there tried by the court without a jury, by consent of parties.
On the trial in the circuit court, the parties submitted the case upon a written statement of facts, signed by them, and no other proof was offered.
The court found for the defendant. The plaintiff moved for a new trial, which was overruled, and plaintiff excepted. Judgment for costs and for a return of the property was entered, and plaintiff appeals to this court.
The only question in the case is: Did the circuit court err in refusing a new trial?
The facts stated in the submission are as follows: On July 16, 1875, McAuley, Yoe & Co. recovered judgment before a justice of the peace against one Cox, for $154.50. On July 19, 1875, an execution issued on said judgment for $104.50, and was, on the same day, delivered to Pearce (the appellee in this court), a constable. On August 23, 1875, Cox assigned all his personal property, consisting of a large stock of clothing, etc., to Corbin (the appellant in this court), for the benefit of the creditors of Cox, and on the same day Corbin took possession of the stock of goods under the assignment. On August 26, 1875, Pearce levied upon a portion of the goods so assigned to Corbin, and, on the same day, Corbin brought this action of replevin, and took the goods so levied upon by Pearce. The day of trial before the justice of the peace, in this action of replevin, was set for September 1,1875. On that day, “Pearce took the execution to the justice who issued it, and the said justice changed said execution from $104.50 to $154.50.”
It is insisted that the execution was originally void, on account of the variance between the amount of the judgment and the amount of the execution, and that, if originally valid, the execution was rendered void on the 1st of September by the change made in the same by the justice who issued it.
An execution not based upon a valid judgment, is, undoubtedly, void.
A variance between a judgment and an execution might be so marked that, in the absence of other proof, it would properly be inferred that the judgment in question was not the judgment mentioned in the writ, but such inference may be rebutted by proof, ( Newman v....
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... ... H. 453, 77 Am. Dec. 728; Lewis v. Lindley, 28 Ill. 147; Durham v. Heaton, 28 Ill. 204, 81 Am. Dec. 275; Becker v. Quigg, 54 Ill. 390; Corbin v. Pearce, 81 Ill. 461; Hunt v. Loucks, 38 Cal. 372, 99 Am. Dec. 404; Dewey v. Peeler, 161 Mass. 135, 36 N. E. 800, 42 Am. St. Rep. 399; Chesebro v ... ...
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Mayne v. Drury
...if any inference that the judgment mentioned in the execution is not the judgment upon which the writ was issued is met by proof. Corbin v. Pearce, 81 Ill. 461;Railsback v. Lovejoy, 116 Ill. 442, 6 N. E. 504. In this case there was no doubt or uncertainty as to the judgment upon which the e......
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