Edwards v. Edwards

• Decision Date: 30 April 1863
• Citation: 1863 WL 3131,31 Ill. 474
• Parties: JAMES O. EDWARDS et al.v.GEORGE J. EDWARDS et al.
• Court: Illinois Supreme Court

31 Ill. 474

1863 WL 3131 (Ill.)

JAMES O. EDWARDS et al.

v.GEORGE J. EDWARDS et al.

Supreme Court of Illinois.

April Term, 1863.

APPEAL from the Circuit Court of Mercer county; the Hon. AARON TYLER, Judge, presiding.

This was an action of debt upon an injunction bond, instituted in the Circuit Court, by George J. Edwards, Robert A. Edwards and James M. Mannon, for the use of George J. Edwards, against James O. Edwards and Lewis W. Thompson.

It appears from the declaration, that, at the September term, 1857, of the Circuit Court of Rock Island county, George J. Edwards recovered a judgment in an action of ejectment against James O. Edwards, for certain lands situate in Mercer county.

On the 20th of February, 1860, a writ of possession was issued upon that judgment, directed to the sheriff, the said Mannon, and while this writ was in the hands of the sheriff, on the 8th day of March, 1860, the said James O. Edwards, the defendant in the action of ejectment, exhibited his bill in chancery in the Circuit Court of Mercer county, against the said George J. Edwards, the plaintiff in the action of ejectment, Robert A. Edwards, and James M. Mannon, the sheriff, praying, among other things, that an injunction issue, enjoining any further proceedings under the writ of possession. The injunction was awarded, on condition that the complainant execute bond to the defendants in the suit in chancery in the penal sum of $1,500, conditioned as the law requires.

Upon such bond being given, with Lewis W. Thompson as security, an injunction was issued in pursuance of the prayer in the bill, and further proceedings under the writ of possessesion were thereby stayed.

Subsequently, such proceedings were had in the suit in chancery, that upon the hearing, the injunction was dissolved and the bill dismissed, and a decree against the complainant for costs, taxed at $2.25.

Upon that injunction bond this action of debt was brought, the plaintiffs alleging that by the force and effect of the said writ of injunction, the plaintiff, George J. Edwards, was kept out of the possession of the said premises, and deprived of the use and enjoyment of the same, and of the rents, issues and profits thereof, from the 10th day of March, 1860, the time of the service of the writ of injunction, until the 1st of September following, when the injunction was dissolved, whereby they had sustained damage to the amount of $1,500, and that the defendants had not paid the decree for $2.25 costs, etc.

A demurrer to the declaration was overruled, and the defendants abiding by their demurrer, it was ordered by the court, that the plaintiffs have judgment for their debt and damages, and because the same were unknown to the court, a jury was empanneled to assess the amounts. Thereupon, a jury was empanneled and sworn “to well and truly try the issues joined.” Upon this inquest of damages the plaintiffs introduced evidence showing the quantity of land in cultivation upon the premises mentioned, and the value of the use of such premises from the time of the service of the writ of injunction until the dissolution of the injunction. It appeared there was a large crop of corn and grass on the farm that season, none of the corn being gathered on the 1st of September, 1860.

The defendants asked a witness the following question, which was objected to by the plaintiffs, and the objection sustained by the court:

“What would the use of the premises be worth to any one, from the 10th of March to the 1st of September, 1860, if on the 1st of September, 1860, they had to be surrendered, with all the crops then standing and growing thereon?”

The witness, who was a tenant on the premises, stated, in answer to a question of the court, “that he gathered the crop from his part, as tenant of defendant, Edwards, and gave him the landlord's share, and the other tenants did the same thing. The plaintiffs did not get possession of the lands that fall, nor any benefit from the crops.”

The plaintiffs also gave in evidence, the injunction bond, the bill of costs in the suit in chancery, and the order dismissing the same.

The defendants then moved the court to exclude all the evidence having reference to the value of the use of the premises pending the injunction, as...