Lill v. Stookey

• Decision Date: 30 June 1874
• Citation: 1874 WL 8863,72 Ill. 495
• Parties: PETER W. LILLv.JAMES M. STOOKEY.
• Court: Illinois Supreme Court

72 Ill. 495

1874 WL 8863 (Ill.)

PETER W. LILL

v.JAMES M. STOOKEY.

Supreme Court of Illinois.

June Term, 1874.

WRIT OF ERROR to the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

Mr. WILLIAM H. UNDERWOOD, for the plaintiff in error.

Messrs. G. & G. A. KŒRNER, for the defendant in error.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This is a writ of error, brought to reverse a judgment entered in the circuit court of St. Clair county at the January term, 1874, amending the record of a judgment rendered in the same court at the October term, 1871.

It appears, from the bill of exceptions contained in the record, that on the 22d day of April, 1870, the plaintiff in error brought an action of replevin against the defendant in error, in the circuit court of St. Clair county, to recover certain property. At the return term of the writ, the cause was continued for want of a declaration. At the second term it was again continued, and at the third and October term, 1871, the cause was dismissed for the want of a declaration.

The judgment reads as follows: “On the first Thursday of the term, on motion of the defendant's attorney, the court orders that this cause be dismissed for want of a declaration, this being the third term; and it is further ordered, that the plaintiff pay the costs of this suit, and execution is awarded therefor.”

At the March term, 1873, the defendant in the suit entered a motion to amend the prior order of the October term, 1871, by awarding a writ of retorno habendo. At the same term this motion was withdrawn. During the January term, 1874, the defendant in error served a written notice on the plaintiff in error, that on a certain day he would apply to the court for a writ of retorno habendo, to compel said plaintiff to return the property involved in said suit to said defendant.

The record of the court, after reciting service of notice of the motion and the appearance of the parties, concludes as follows: “And the motion for a writ of retorno habendo coming on to be heard, and the court being fully advised of and concerning the premises, allows the same. It is, therefore, considered and adjudged by the court, that the defendant recover of and from said plaintiff the property in the affidavit and writ in this cause described, to-wit: one steam engine, two engine boilers, one collar of the main pitman of said engine, and that he have a writ of retorno habendo for the recovery thereof; and it is further ordered by the court, that the defendant recover of the plaintiff costs by him in this behalf expended, and have execution therefor.” While the notice served on the plaintiff in error, upon its face, would seem to imply the only intent of this proceeding was to obtain an order of court for a writ of retorno habendo, yet it is apparent, from the whole record, that the true object was to obtain an order of court...