Graves v. Shoefelt
| Decision Date | 30 September 1871 |
| Citation | 60 Ill. 462,1871 WL 8172 |
| Parties | AMOS C. GRAVESv.FANNIE E. SHOEFELT. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Court of Common Pleas of the city of Aurora; the Hon. RICHARD G. MONTONEY, Judge, presiding??
Mr. J. D. DUNNING, party in interest, for the appellant. Mr. JUSTICE MCALLISTER delivered the opinion of the Court:
This was an action of replevin, originally commenced, by appellee against appellant, before one D. Iliff, as a justice of the peace, for the alleged wrongful taking by appellant of a sewing machine, the property of appellee.
The case was taken by a change of venue, on appellant's application, from Iliff to Rood, a justice of the peace, before whom both parties appeared, and the cause was tried before a jury, whose verdict was unfavorable to appellant, and he thereupon took an appeal to the Court of Common Pleas of the city of Aurora, and there made a motion to dismiss the suit, on the ground that Iliff was not a justice of the peace, in law or fact, and for want of a sufficient replevin bond, which motion was overruled by the court and exception taken. Appellant, upon the affidavit of J. Dunning, who claimed to be the party in interest, moved for a change of venue on account of the prejudice of the judge. This motion was also overruled. The case was tried before the court and a jury. Upon the trial, appellant sought to justify the taking of the sewing machine by virtue of a landlord's distress warrant issued by said Dunning, for rent due from appellee to him to the amount of $9.
This defense was sought to be avoided by appellee by showing that she was the head of a family, having three children to support, and that the sewing machine was exempt from distress. The jury returned a verdict in favor of appellee. The court overruled a motion for a new trial made by appellant, gave judgment on the verdict, and the case is brought here by appeal.
The grounds for reversal are:
First--That the court erred in denying appellant's motion to dismiss the suit.
Second--In denying the motion for a change of venue.
Third--In giving improper instructions on behalf of appellee, and overruling the motion for a new trial. The motion to dismiss the suit was properly denied. If Iliff was not a justice of the peace, either dejure or de facto, he made himself liable as a trespasser, and the writ was void?? But by applying for, and taking a change of venue to Rood?? who was a lawful justice, and both parties going to...
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