Graves v. Shoefelt

• Decision Date: 30 September 1871
• Citation: Graves v. Shoefelt, 60 Ill. 462, 1871 WL 8172 (Ill. 1871)
• Parties: AMOS C. GRAVESv.FANNIE E. SHOEFELT.
• Court: Illinois Supreme Court

60 Ill. 462

1871 WL 8172 (Ill.)

AMOS C. GRAVES

v.FANNIE E. SHOEFELT.

Supreme Court of Illinois.

September Term, 1871.

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...