David v. Bradley

• Decision Date: 30 September 1875
• Citation: 1875 WL 8625,79 Ill. 316
• Parties: MORRIS DAVID et al.v.TIMOTHY M. BRADLEY, for use, etc.
• Court: Illinois Supreme Court

79 Ill. 316

1875 WL 8625 (Ill.)

MORRIS DAVID et al.

v.TIMOTHY M. BRADLEY, for use, etc.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding. Mr. ALLAN C. STORY, for the appellants.

Messrs. GRANT & SWIFT, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of debt, upon a replevin bond, to recover damages for a failure to make return of the property replevied, in accordance with the condition of the bond and order of court.

Defendants below were defaulted. They subsequently entered a motion to set aside the default, filing affidavits in support of the motion. The court denied the motion.

This is assigned for error; but we can not review this ruling of the court, as the affidavits upon which the motion was based are not brought into the record by any proper bill of exceptions. All the proceedings in respect thereto, as shown by the record, took place before the Hon. Lambert Tree, judge.

The bill of exceptions incorporating the proceedings is signed by the Hon. John G. Rogers, one of the judges of the circuit court of Cook county.

Such a bill of exceptions, signed by one judge, which contains proceedings that took place wholly before another judge, without consent, and against objection made at the time, as appears here, is irregular and unauthorized, and we can not notice the same. The bill of exceptions must be signed by the judge who tries the cause, or before whom the proceeding takes place.

Afterward, an assessment of the plaintiff's damages was had before a jury.

In the original replevin suit, the property in question had been replevied by a tenant from his landlord, who had taken it as a distress for rent due from the tenant. The tenant failed to prosecute his replevin suit, and a return of the property replevied was awarded. On the trial for the assessment of damages, the landlord testified there were two months' rent due, at $250 per month. The tenant offered to testify that, after the making of the lease, the landlord failed to give him possession of the entire building leased, and the rent was reduced to $208.33 per month. This testimony the court rejected. The court, too, on behalf of the plaintiff, instructed the jury that the measure of damages was the value of the property taken under the distress warrant. The rejection of this testimony and the giving of this instruction are assigned as error....