Greenberg v. Stevens

• Citation: 212 Ill. 606,72 N.E. 722
• Parties: GREENBERG et al. v. STEVENS.
• Decision Date: 22 December 1904
• Court: Supreme Court of Illinois

212 Ill. 606

72 N.E. 722

GREENBERG et al.

v.STEVENS.

Supreme Court of Illinois.

Dec. 22, 1904.

Appeal from Appellate Court, First District.

Action by Agnes Stevens against Louis Greenberg and others. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendants appeal. Affirmed.

Edward H. Morris, for appellants.

Thornton & Chancellor (James D. Andrews, of counsel), for appellee.

BOGGS, J.

This was an action in replevin, with a count in trover, instituted by the appellee against the appellants. The writ of replevin was returned with an indorsement that the property therein described could not be found. The appellant Greenberg, a constable, held an execution against the goods and chattels of one O. W. Freese, by virtue whereof he levied upon and seized the goods and chattels described in the declaration. The appellee, claiming to be the owner, brought this action to recover the articles, or their value. The cause was tried before the court and a jury, and judgment was entered in the trial court in her favor in the sum of $660. The Appellate Court, on appeal, affirmed the judgment. A certificate of importance was granted, and this appeal was perfected.

The appellee did not, before instituting the action, demand that the constable should surrender the property, and for that reason it is urged the trial court should have sustainedthe motion entered by the appellants to direct the jury to return a verdict in their favor. The execution debtor, O. W. Freese, was stepfather to the appellee. He, his wife (the appellee's mother), and the appellee lived together as members of a family in a house which belonged to appellee. It appeared without dispute that the goods sought to be replevined, which consisted of parlor furniture, beds, bedding, a table, lady's scarf, jackets, etc., belonged to appellee. They were in use, in part, as household goods, but it was proven, and not denied, that the appellee was present when the officer came with the execution, and that she notified him, before he made the levy, that the property belonged to her, and was not the property of the debtor; that the officer said ‘he did not care what she claimed; that he was going to take the property’; that ‘she was a liar, and that he did not care who claimed the property’; that ‘he was going to take the law into his own hands and be the judge of the matter himself.’ It was further proven, and not denied, that appellee's mother at the same time told the officer that the property did not belong to her husband, but belonged to the appellee, and also told him how the daughter came to be the owner of the property, and that bills and receipts showing that the property had been purchased by and paid for by the appellee were tendered to the officer; that he threw the bills and receipts on the floor, and threatened to put handcuffs on appellee's mother, and finally knocked her down and seized the property by force. It was at least a controverted question of fact whether the property was in the possession of the appellee; and if it was in her possession, and was taken from her possession by the constable, no demand was necessary, and for that reason the court should have submitted the case to the jury. The defendant in the execution was not present when the levy was made, nor was there any proof tending to show that he had or claimed the right to have possession of the property, save such presumption as might arise from the facts he residedin the house where the property was in use as household furniture and goods, and was the apparent head of the family. But the constable was notified of facts which tended to rebut any such presumption. Reeves v. Webster, 71 Ill. 307. He was distinctly advised that the property belonged to the appellee, and was in her possession, and warned not to seize it; and, having taken possession of it with full notice of the appellee's title, no demand, under all of the circumstances, was necessary. 14 Am. & Eng. Ency. of Law (2d Ed.) 508.

Among other articles levied upon and seized by the constable was a suit of men's clothing, a gold watch chain, and a pipe. These articles belonged to the defendant in the execution. It is urged that these goods of the execution debtor were mixed or confused with the goods of the appellee, and that the appellee failed to point out specifically the articles belonging to her, and that for that reason a levy upon all the property was...