Kee & Chapell Dairy Co. v. Pennsylvania Co.

• Decision Date: 18 February 1920
• Docket Number: No. 13037.,13037.
• Citation: 126 N.E. 179,291 Ill. 248
• Court: Illinois Supreme Court
• Parties: KEE & CHAPELL DAIRY CO. v. PENNSYLVANIA CO.

291 Ill. 248

126 N.E. 179

KEE & CHAPELL DAIRY CO.

v.PENNSYLVANIA CO.

No. 13037.

Supreme Court of Illinois.

Feb. 18, 1920.

Action by the Kee & Chapell Dairy Company against the Pennsylvania Company. A judgment for plaintiff was affirmed by the Appellate Court, First District, and defendant appeals on a certificate of importance.

Affirmed.Appeal from Appellate Court, First District, on Error to Municipal Court of Chicago; Edmund K. Jarecki, Judge.

William J. Stapleton and Epstein & fenwell, all of Chicago, for appellant.

Levinson & Hoffman, of Chicago (Arista B. Williams and L. Loewenstein, both of Chicago, of counsel), for appellee.

STONE, J.

This case is brought to this court on a certificate of importance and appeal from the Appellate Court for the First District, there heard on writ of error to the municipal court of Chicago.

The plaintiff, the Kee & Chapell Dairy Company, a corporation of Chicago, on March 17, 1918, began an action of replevin against the defendant, the Pennsylvania Company, a railroad corporation, to repossess itself, as owner, of 2,000 milk bottles delivered by Ziff & Berman to the defendant, as a common carrier, at Chicago, for shipment to St. Louis, Mo., to their order. At the hearing in the municipal court without a jury the court entered judgment in favor of the plaintiff that it have and retain possession of the property replevied, with one cent damages and costs against the defendant. At the close of the plaintiff's evidence, and again at the close of all the evidence, the defendant entered its motion for a finding for it and tendered a finding to that effect, which was marked ‘refused’ by the trial court. No other propositions of law were submitted to the trial court by appellant.

This action was brought in the municipal court of Chicago under section 2 of ‘An act in relation to a municipal court in the city of Chicago,’ approved May 18, 1905 (Laws 1905, p. 158), in force July 1, 1905, as a fourth-class claim. No pleadings are required in that court in this class of cases other than the affidavit, bond, and writ of replevin, as provided by the statute. The issues, therefore, must be determined from the nature and character of the evidence submitted at the trial.

It is contended by the appellant in this court that the motion at the close of all the evidence to find the issues joined for the defendant presents a proposition of law to be reviewed by this court, and opens for review the entire record. It is contended by the appellee that all of the questions involved in this case are questions of fact, and for that reason there is nothing for review by this court.

The theory of the defendant (appellant in this court) is that these bottles, or a large portion of them, were acquired from dumping grounds in the city of Chicago; that the bottles had been abandoned, after which they found their way to these dumping grounds; that they were the property of Ziff & Berman, a firm of junk dealers, and not appellee's property. On the other hand, it is urged by the appellee, and found by the trial court and by the Appellate Court that the bottles were originally purchased by the plaintiff and through neglect or carelessness or willful act of its patrons the bottles in question were lost and were not abandoned by the owner; that the bottles were marked, ‘Property of Kee & Chappell Dairy Company,’ for purposes of identification; that plaintiff and other dealers in milk had a system of collection and exchange of lost bottles bearing this and other inscriptions; that customers were paid for the return of the bottles, and that such charge was not made with the idea of a sale of the same.

Appellant contends here that the Appellate Court and trial court erred in assuming that the rights of Ziff & Berman were not directly before the court for adjudication, and it urges that the opinion of the Appellate Court shows that court did not pass upon the rights of Ziff & Berman. We have frequently held that our inquiry in cases from the Appellate Court on appeal or writ of error can only be whether or not there was error committed in rendering the judgment appealed from, and in cases at law this inquiry is confined to errors of law. While this court will look into the opinion of the Appellate Court to determine whether that court predicated its judgment solely on an erroneous conception of law (Foster v. Graf, 287 Ill. 559, 122 N. E. 845), what that court may assign as reasons for its judgment is not a matter of concern here, where our duty is to determine the correctness of such judgment (Pennsylvania Co. v. Versten, 140 Ill. 637, 30 N. E. 540,15 L. R. A. 798;First Nat. Bank v. Miller, 235 Ill. 135, 85 N. E. 312;Berry v. Turner, 279 Ill. 338, 116 N. E. 633;Stanton v. Chicago City Railway Co., 283 Ill. 256, 119 N. E. 291). It is evident from the record that the question of title in Ziff & Berman was before both the trial and Appellate Courts on the evidence submitted. There were no written pleadings in the case, and the evidence, therefore, may be examined to determine the issues. Evidence of property in Ziff & Berman was equivalent, here, to a plea by the defendant of property in a third person. This defense was taken and urged by appellant in both the trial and Appellate Court. Under a plea of property in a third person in an action of replevin, with a denial of right of property in the plaintiff, the only issuable fact is the right of property in the plaintiff. The plea of property in the defendant or a third person is a matter of inducement to the formal traverse of the right of property in the plaintiff. Under such plea the plaintiff must recover on the strength of his own title, and the burden of proof is on him. Such plea does not raise a new issue. Anderson v. Talcott, 1 Gilman, 365;Chandler v. Lincoln, 52 Ill. 74;Constantine v. Foster, 57 Ill. 36;Reynolds v. McCormick, 62 Ill. 412;Lamping Bros. v. Payne, 83 Ill. 463;Pease v. Ditto, 189 Ill. 456, 59 N. E. 983. If the defendant in a replevin suit prevails, the third person in whom such defendant pleads property, not being privy of the defendant, cannot take benefit of the judgment. Edwards v. McCurdy, 13 Ill. 496. It becomes apparent in this case that evidence of the property in Ziff & Berman served only as an additional attack on plaintiff's title, which title plaintiff was bound to sustain by a greater weight of the evidence. In determining, therefore, whether the judgment of the Appellate Court was right in affirming the judgment of the trial court for the plaintiff, this court will presume that that court considered all the evidence touching upon the question of the title of plaintiff. This would include any evidence tending to show the title to be in Ziff & Berman.

Appellant on the trial presented no propositions to be held by the court as the law of the case, and presented only the motion for a finding for it. This court can review only questions of law. The only question of that character presented here is that raised by the motion of defendant for a finding in its favor. This court has held that it cannot review the evidence for the purpose of determining whether it sustains the findings of the Appellate Court, but when the question is properly raised and preserved in the trial court whether there is evidence tending to prove the plaintiff's cause of action, such ruling may be examined by this court as presenting a question of law. Babbitt v. Grand Trunk Western Railway Co., 285 Ill. 267, 120 N. E. 803;Rigdon v. More, 226 Ill. 382, 80 N. E. 901;Commercial Union Assurance Co. v. Scammon, 126 Ill. 355, 18 N. E. 562,9 Am. St. Rep. 607. While assignments of error were made by the appellant in the Appellate Court concerning the rulings of the trial court on the admissibility of evidence,...