Hanaman v. Davis
| Citation | 155 N.E.2d 344,20 Ill.App.2d 111 |
| Decision Date | 16 January 1959 |
| Docket Number | Gen. No. 11184 |
| Parties | Harley D. HANAMAN, Plaintiff-Appellee, v. John E. DAVIS and Elizabeth Davis, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Berry & Simmons, Rockford, for appellants.
Brown, Connolly & Paddock, Rockford, for appellee.
The defendants, John E. Davis and Elizabeth Davis, on October 22, 1954, gave to the plaintiff, Harley D. Hanaman, two chattel mortgages, one conveying a 1953 Oldsmobile, securing a note in the sum of $1,410 and the other conveying a 1950 International truck, securing a note in the sum of $1,500. Previously, on July 14, 1954, the defendants had given a chattel mortgage to Pearl Guse conveying, among other properties, the same automobile and truck conveyed to plaintiff and securing a note in the sum of $12,000.
On January 20, 1955, the plaintiff filed in the Circuit Court of Winnebago County a complaint in replevin. The replevin complaint alleges that the defendants wrongfully detained the 1953 Oldsmobile and 1950 International truck; that the vehicles were of the total value of $3,000; that plaintiff was lawfully entitled to possession; that defendants refused to deliver possession; that plaintiff had been damaged by the wrongful acts of the defendants in the sum of $200. Plaintiff prayed judgment that said vehicles be returned or that defendants pay the value thereof, $3,000, and for damages in the sum of $200 for the alleged wrongful detention. In the replevin action the Oldsmobile was seized. Defendants gave a forthcoming bond in the sum of $4,000 and the Oldsmobile was released to the defendants. On December 27, 1957, the court rendered judgment finding the issues in favor of the plaintiff and against the defendant and that the plaintiff was entitled to the possession of the 1953 Oldsmobile and that plaintiff was entitled to damages from the defendant for the wrongful detention of said property, or in the alternative, payment of the indebtedness secured by the chattel mortgage with interest, plus attorney fees and costs of suit. The judgment order provided as follows:
'It is therefore ordered and adjudged,
'(1) Either that defendant pay to the plaintiff the sum so owing, plus interest and attorneys fees, being a total of Two Thousand Seventy-nine and 8/100 Dollars ($2,079.08) within 30 days of the date hereof and the costs of this suit, on which sums execution shal issue.
'(2) Or defendant shall make return of the above-described property to the plaintiff forthwith, and shall pay to the plaintiff damages for the wrongful detention of said property in the sum of Two Thousand Nine Hundred Seventy-Five Dollars ($2,975.00) and the costs of this suit, and that execution shall issue therefor.'
From the foregoing judgment order defendants below have prosecuted an appeal to this court and contend that the judgment is not supported by the law or the facts, that the judgment is improper in form and that the judgment is not supported by the allegations in the complaint. Although the matter was never clearly presented to the trial court, defendants contend that an action in replevin cannot be maintained because the previous chattel mortgage given to Pearl Guse conveying the same automobile and truck covered by the second mortgage subsequently given to the plaintiff had been foreclosed prior to the commencement of the replevin action herein.
The judgment provided for the payment of $2,079.08 if the automobile should not be returned within thirty days. This was based upon one note and the interest thereon. The note, which is the subject of the judgment, is not described. There is no evidence as to the amount due on the two notes executed by the defendants except the notes themselves. There was no evidence of a computation of principal and interest on either note. The record is certainly not clear as to whether judgment was rendered on the $1,410 note or the $1,500 note. Interest on the former note could not have exceeded $275 and on the latter note $290. There was no provision in either note for the payment of attorney fees and there was no proof as to what constituted a fair and reasonable attorney fee under the provisions of the chattel mortgage. It is impossible for us to determine how the trial court arrived at the amount of the judgment. The evidence in the record before us does not support the judgment. The judgment of the court in an action tried without a jury must be based upon evidence admitted in the case. It is essential to the sufficiency of findings of a court that they be sustained by the evidence. Lewis v. Westside Trust & Savings Bank of Chicago, 288 Ill.App. 271, 6 N.E.2d 481. Neither defendant is designated in the entire judgment order by...
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Frier v. City of Vandalia, Ill.
...693, 294 N.E.2d 729 (1st Dist.1973), rev'd in part on other grounds, 57 Ill.2d 461, 315 N.E.2d 1 (1974); Hanaman v. Davis, 20 Ill.App.2d 111, 155 N.E.2d 344 (2d Dist.1959), both of which allow one count seeking replevin to be joined with another count seeking different relief. As we show be......
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