Magerstadt v. Harder

• Decision Date: 25 October 1902
• Citation: 199 Ill. 271,65 N.E. 225
• Parties: MAGERSTADT, Sheriff, v. HARDER.
• Court: Illinois Supreme Court

199 Ill. 271

65 N.E. 225

MAGERSTADT, Sheriff,

v.HARDER. ^*

Supreme Court of Illinois.

Oct. 25, 1902.

Appeal from appellate court, First district.

Action by E. J. Magerstadt, sheriff, against Charles C. Harder. From a judgment of the appellate court (95 Ill. App. 303) affirming a judgment in defendant's favor, plaintiff appeals. Reversed.Hoyne, O'Connor & Hoyne, for appellant.

Peck, Miller & Starr, for appellee.

BOGGS, J.

The action below was debt to recover on a replevin bond which the appellee had executed as surety for one Gustave Cramer, the plaintiff in an action in replevin. The appellee did not plead to the declaration to recover on the bond, but made default. He appeared, however, when the damages were to be assessed, and by agreement a jury was waived, and the inquiry of damages was had before the court. The replevin suit was dismissed, and the chattels ordered returned to the defendant in replevin, but had not been returned by the plaintiff in replevin. The value of the chattels was shown to be $1,200. The court refused to allow damages except for the costs and attorney fees in the action of replevin. The appellate court affirmed the judgment, and the cause is before us by this appeal from the judgment of affirmance.

The chattels for which the writ of replevin issued constituted the furniture and appliances of two photograph galleries. The court, over the objection of appellant, permitted the appellee (defendant in the action on the bond) to introduce proof to show that the furniture and appliances of the galleries belonged to one Francis A. Place; that Place executed a chattel mortgage thereon to the plaintiff in the replevin suit, and afterwards said Place executed and delivered to the defendant in the replevin suit an instrument which (the appellee insisted) was but a second mortgage on the same furniture and appliances; and that the lien of the mortgage to the plaintiff in the replevin suit was superior to the lien of the defendant in the replevin suit. On such showing the court ruled the defendant in replevin was not entitled to recover any sum whatever as damages by reason of the retention of the furniture and appliances by the plaintiff in replevin, but was entitled to recover only costs and attorney fees paid or incurred to be paid in the prosecution of the suit in replevin.

Section 26 of chapter 119 of the Revised Statutes, entitled ‘Replevin,’ is as follows: ‘When the merits of the case have not been determined in the trial of the action in which the bond was given, the defendant in the action upon the replevin bond may plead that fact and his title to the property in dispute, in said action of replevin.’ The appellee did not, however, avail himself of the benefit of this statute. He filed no plea to the declaration on the replevin bond, and raised no issue in that action that his principal, the plaintiff in replevin, had any title to or lien on the furniture and appliances of the galleries. It was, therefore, improper to permit him, on the assessment of damages in the action on the replevin bond, to insist, or introduce proof to show, that the principal obligor, the plaintiff in the replevin action, had a lien on the chattels superior to that of the appellant. It was proper to show that the interest of the appellant in the furniture and appliances of the galleries was that of a lienholder, for the reason the amount of the damages which the appellant had the right to recover would be measured by the amount intended to be secured by his lien, together with costs accruing and attorney fees incurred in the suit in replevin. The proof that the defendant in replevin had only a lien on the chattels in dispute was proper to be heard in reduction of the damages to be assessed in his favor because of the conversion by the plaintiff in replevin to his own use of the goods and chattels upon which the lien operated. But the appellee, in default of a plea under the statute, had not the right to insist, and attempt to prove, upon the assessment of damages,...