Fahnestock v. Gilham
| Decision Date | 30 June 1875 |
| Citation | 1875 WL 8383,77 Ill. 637 |
| Parties | JOHN T. FAHNESTOCK, for use, etc.v.GERSHAM P. GILHAM et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding.
Messrs. GILLESPIE & HAPPY, for the appellant.
Messrs. METCALF & BRADSHAW, for the appellees.
This action was originally brought by appellant, before a justice of the peace, against appellees, on a replevin bond. On a trial of the cause in the circuit court, the court decided the bond was not admissible in evidence, on the ground that the justice of the peace did not have jurisdiction of the action of replevin in which the bond was given.
The jury returned a verdict against appellant, upon which the court rendered judgment, to reverse which an appeal has been prosecuted.
The action of replevin was brought by G. P. Gilham against Charles and Charles P. Sebastian. The affidavit upon which the writ of replevin issued stated that the plaintiff was the owner and lawfully entitled to the possession of the following goods and chattels, to-wit: about 1200 rails in a string of fence 80 rods long, on the west side of the north-west quarter of the south-west quarter of section 1, township 4 north, range 9 west of third principal meridian, in Madison county, Illinois. The description of the property in the writ, and the bond taken by the constable before the writ was executed, followed the affidavit.
The affidavit, however, was, on motion, amended before a trial was had, by striking out the words “in a string of fence 80 rods long,” but no alteration was made in either the writ or bond.
The question presented by this record is, whether a person, who institutes an action of replevin, obtains possession of the property under the writ, submits to a trial, and is defeated, can, when sued upon the bond which he has voluntarily given to the officer who executed the writ, be heard to say the court whose process he has invoked had no jurisdiction of the subject matter.
It is insisted by appellees, that the bond upon which this action is instituted was given solely for the benefit and protection of the constable who executed the writ. In this, however, they are mistaken. The statute requires the officer, before he executes the writ, to take a bond, which is required to be returned with the writ. In case he fails to do this, he is liable, in an action, for damages. These requirements of the statute are for the benefit of the defendant.
In the case of Petrie v. Fisher, 43 Ill. 442, it was expressly held, that the object of a replevin bond, under our statute, is not merely to indemnify the sheriff, but also to furnish an additional remedy to the defendant in case the plaintiff fails to maintain his suit.
It is also insisted by appellees, that the writ was void on its face, and the officer could not indemnify himself against executing void process by taking a bond with security.
It is not necessary to inquire whether the writ showed upon its face that the...
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Collins v. Collins
... ... Yockey v. Marion, 269 Ill. 342, 110 N.E. 34; Sullivan v. People, 224 Ill. 468, 79 N.E. 695; Fahnestock v. Gilham, 77 Ill. 637; Bates v. Williams, 43 Ill. 494.' Hopkins v. Gifford, 309 Ill. 363, 370, 141 N.E. 178, 181. It is also the rule that one who ... ...
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Schott v. Youree
... ... Ballou v. Jones, 37 Ill. 95;Fahnestock v. Gilham, 77 Ill. 637.8. It is contended that the court should have excluded all the evidence because the suit was not brought for the use of Hotz, ... ...
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People v. Rogers
...Ill. 328;Field v. Field, 215 Ill. 496, 74 N. E. 443. But he cannot attack it on the ground that the court had no jurisdiction (Fahnestock v. Gilham, 77 Ill. 637;Sullivan v. People, 224 Ill. 468, 79 N. E. 695), nor can be interpose such lack of jurisdiction as a defense in this case. On the ......
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Hopkins v. Gifford
...in a subsequent proceeding. Yockey v. Marion, 269 Ill. 342, 110 N. E. 34;Sullivan v. People, 224 Ill. 468, 79 N. E. 695;Fahnestock v. Gilham, 77 Ill. 637;Bates v. Williams, 43 Ill. 494. From what has been said, it follows that the appellees are the legally adopted children of Cyril G. Hopki......