Franks v. Matson

• Decision Date: 24 October 1904
• Citation: 71 N.E. 1011,211 Ill. 338
• Parties: FRANKS v. MATSON, Sheriff.
• Court: Illinois Supreme Court

211 Ill. 338

71 N.E. 1011

FRANKS

v.MATSON, Sheriff.

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Appellate Court, First District.

Action by Canute R. Matson against Jacob Franks and another. From a judgment of the Appellate Court affirming a judgment in favor of plaintiff, defendant Franks appeals. Affirmed.Pam & Hurd, for appellant.

Merriam & Phelps and Warren B. Wilson (J. W. Merriam, of counsel), for appellee.

MAGRUDER, J.

This is an action of debt, begun in the superior court of Cook county on a replevin bond dated April 25, 1887, executed by Esther Dambach as principal, and the appellant, Jacob Franks, as surety, to the appellee, as sheriff of Cook county, in the penal sum of $4,000, reciting that on April 25, 1887, Esther Dambach sued out of said court a writ of replevin against Mary Milleman and Henry Hertz for the recovery of certain property, being the fixtures and stock of goods in a drug store, known as No. 353 West Twelfth street, Chicago. The condition of the bond was that if Esther Dambach, the plaintiff, ‘shall prosecute her suit with effect and without delay, and make return of said property, if return thereof shall be awarded, and save and keep harmless the said sheriff in replevying the property, and pay all costs and damages occasioned by wrongfully suing out said writ of replevin, then said obligation to be void, otherwise to remain in full force and effect.’ The replevin writ in the replevin suit brought by Esther Dambach, as plaintiff, against Henry Hertz, the coroner, and Mary Milleman, as defendants, described the property replevied on the date of the writ, to wit, April 25, 1887, as being worth $2,000. On May 31, 1887, the replevin suit so brought by Esther Dambach was dismissed on her own motion, and judgment was entered that the defendants therein, Hertz and Milleman, should recover from the plaintiff, Esther Dambach, their costs and charges, and have execution therefor, and that a writ of retorno habendo should issue for the return of the property replevied. On the same day, to wit, May 31, 1887, a part of the property replevied was returned to Mary Milleman.

The pleadings in the present action upon the replevin bond were originally quite complicated, some nine or ten pleas having been filed, together with replications thereto, and rejoinders to the replications. Upon the trial of the case, however, the issues were simplified by a stipulation of counsel, made in open court, to the effect that the only issue of fact to be tried in the case was whether or not the property taken under the replevin writ in the replevin suit in which the bond sued upon was given was returned to the beneficial plaintiff in the suit on the bond, to wit, Mary Milleman. The suit was tried before the court and a jury, and the jury returned a verdict finding the issues in favor of the plaintiff, and that the defendant below, the present appellant, Jacob Franks, was indebted to the appellee in the sum of $4,000, and assessing the plaintiff's damages at the sum of $1,341.33. Motion for new trial was overruled, and judgment was rendered upon the verdict. Upon appeal to the Appellate Court the judgment has been affirmed, and the present appeal is from such judgment of affirmance.

All the controverted questions of fact are settled by the judgment of the superior court in favor of the plaintiff, and the judgment of the Appellate Court affirming the judgment of the superior court. We will only consider such grounds as the appellant urges for a reversal of the judgment rendered below.

First. Upon the trial below it appeared that the affidavit in replevin filed by Esther Dambach had been lost, or was not to be found among the files in the replevin suit. Testimony was introduced tending to show that the attorney of appellee made proper search for the affidavit and was unable to find it. He testified that he found in the files a receipt to the clerk of the court for the affidavit filed in the case of Dambach v. Milleman, and signed by the attroneys for the plaintiff in the replevin suit. Appellee's attorney stated that he had no personal knowledge that the affidavit had ever been filed, except the fact that the receipt in question had been executed. After the statements thus made by appellee's attorney in regard to the absence of the affidavit from the files, and the presence therein of a receipt for it by plaintiff's attorneys, a deputy clerk of the superior court, by the name of George S. Dixon, was put upon the stand, and testified that he was such deputy clerk at the time the writ of replevin was issued; that the written portions of the writ were in his handwriting; and that it was the custom and rule in the clerk's office to copy the value of the goods as stated in the writ from the affidavit, and that there was no other source from which he could have obtained it. He stated on cross-examination that he did not know before whom the affidavit was subscribed or sworn to, or by whom it was filed, and had no recollection concerning the transaction.

The first ground of reversal urged by the appellant is that the trial court erred in admitting the testimony of Dixon as thus recited. We are inclined to think that the admission of the testimony was erroneous. There was no testimony as to the contents of the lost affidavit in replevin. The only evidence of the alleged fact that the affidavit stated the value of the property replevied was the statement of the deputy clerk that it was the practice of his office to copy into the writ of replevin the value of the property as stated in the replevin affidavit. But whether in this instance he did so copy the value, he was unable to say. The practiceor custom of the clerk's office in this regard was incompetent to prove the contents of the lost affidavit. What the clerk or deputy clerk may have done in other cases could not be converted into proof of what actually took place in this particular proceeding. Jackson v. Bry, 3 Ill. App. 586. But we are unable to see how the admission of the testimony of Dixon, though improper, worked any injury to the appellants. We do not deem it necessary to decide whether or not the statement of the value of the property replevied in the replevin affidavit would be conclusive evidence of such value as against appellant, even if the loss of the affidavit and its contents had been properly proved. It is sufficient to say that in the present case there was abundant evidence of the value of the property taken under the replevin writ on April 25, 1887, outside of any recital in the replevin affidavit or writ. Mrs. Milleman swore that when the property was taken from her on April 25, 1887, it was worth $2,000. In addition to this, the testimony tends to establish the following state of facts: Mrs. Mary Milleman owned a drug store, containing the necessary fixtures of such a store, at the place above named, and on February 27, 1887, made a sale of the store to Edward Dambach, the husband of Esther Dambach, for the sum of $2,000. Mrs. Milleman, the vendor, and Edward Dambach, the purchaser, appear to have been in joint possession of the store, running and operating it as an organized business, from the day of the sale on February 27, 1887, until about the 4th or 5th of April, 1887. At the latter date Edward Dambach executed to Mrs. Milleman a chattel mortgage upon the stock and fixtures in the store to secure a note for a part of the purchase money. Upon the execution of this mortgage the exclusive possession seems to have been given to Edward Dambach. Subsequently, and not later than April 25, 1887, Edward Dambach confessed a judgment in favor of one Turner, and, under an execution issued upon this judgment, the sheriff levied upon the stock of goods and fixtures. He held them, however, only a short time, when they were replevied from him under a writ of replevin sued out by Mrs. Milleman in a replevin suit entitled ‘Mary Milleman v. Canute R. Matson and Bartholomew Quirk,’ the latter being a deputy. Almost immediately after the property was receipted for by Mrs. Milleman, it was taken from her possession by the sheriff under the writ of replevin in favor of Esther Dambach, wife of Edward Dambach, in the suit in which the bond here sued upon was given. The affirmative testimony that the replevied property was worth $2,000, and the fact that shortly before it was replevied by Esther Dambach it was sold by Mrs. Milleman to Esther Dambach's husband for $2,000, tend to establish its value at that figure. Inasmuch as its value was thus shown to have been $2,000 independently of any recital in the replevin affidavit, the finding of the jury upon that subject was justified by the evidence, and, the preponderance of the evidence being in favor of the finding, the cause should not be reversed for the erroneous admission of the testimony in regard to the contents of the affidavit. If the objectionable evidence which was admitted had been excluded, the result would have been the same, and, where a court of review can see that an error so complained of was harmless, it will not reverse the finding of the trial court. Leigh v. Hodges, 3 Scam. 15.

Where the evidence is conflicting upon a question of this kind, and the finding of the jury is not clearly against the preponderance of the evidence-and here it is not-and the jury have been properly instructed, this court will not interfere with the verdict. Skiles v. Caruthers, 88 Ill. 458;Hayes v. Houston, 86 Ill. 487;Illinois Central Railroad Co. v. Gillis, 68...