Douglas v. Newman

• Decision Date: 30 November 1879
• Citation: 5 Bradw. 518,5 Ill.App. 518
• Parties: GEORGE S. DOUGLASv.ESTHER J. NEWMAN.
• Court: United States Appellate Court of Illinois

5 Ill.App. 518

5 Bradw. 518

GEORGE S. DOUGLAS

v.ESTHER J. NEWMAN.

Appellate Court of Illinois, Third District.

November Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cass county; the Hon. CYRUS EPLER, Judge, presiding. Opinion filed January 13, 1880.

Mr. A. E. DEMANGE, for appellant; that instructions should be based on the evidence, cited Frantz v. Rose, 89 Ill. 594; Martin v. Johnson, 89 Ill. 538; City of Freeport v. Isbell, 83 Ill. 440.

That the husband is the head of the family: Van Doran v. Marden, 48 Iowa; Whalen v. Cadman, 11 Iowa, 226; McMasters v. Alsop, 85 Ill. 157.

Messrs. MORRISON, WHITLOCK & LIPPINCOTT, for appellee; upon the right to amend, cited Rev. Stat. 1874, 778.

Without personal appearance of the defendant before the justice or service by summons, the judgment was void: Evans v. Pierce, 2 Scam. 468; Bines v. Proctor, 4 Scam. 174; Bliss v. Harris, 70 Ill. 343.

DAVIS, P. J.

This was a proceeding commenced originally before a justice of the peace, by appellee, against J. S. Roush and John F. Humphreys, to try the right of property to certain property claimed by appellee, which had been levied on under an execution issued against her, in favor of Roush & Humphreys. The justice gave judgment in favor of the claimant and defendants appealed to the circuit court.

In that court, a motion was made by defendants to dismiss the suit, for the reason that the claimant was the defendant in the execution, under which the levy was made.

This was met by a cross motion by appellee for leave to amend the writ and change the form of action to replevin. The cross-motion was sustained, the action changed to replevin and George S. Douglas made the sole defendant, and the motion to dismiss the suit, made by the original defendants, overruled. An affidavit in replevin was then filed by appellee, whereupon appellant moved to dismiss the suit, because no writ of replevin had been issued and served upon him. This motion was overruled and an exception taken by appellant.” A jury was then called and the case tried, but the jury being unable to agree, were discharged and the case continued to another term, when a verdict was given for appellee, and on overruling a motion for a new trial, the court rendered the following judgment against appellant: “It is therefore ordered and adjudged by the court that the said property in said plaintiff's writ mentioned, be, and is hereby replevied, and that said plaintiff have and retain possession of the same, and that plaintiff have and recover of defendant her costs.”

To reverse this judgment the appeal is taken.

The only questions we have passed upon, are those arising on the several motions made by the parties. The case as tried before the magistrate, and as it first appeared in the Circuit Court, was a trial between appellee and J. S. Roush and John F. Humphreys. On the motion made to dismiss the suit, the...