People ex rel. Vancil Motor Co. v. Weaver
| Decision Date | 24 February 1942 |
| Docket Number | Gen. No. 9300. |
| Citation | 40 N.E.2d 83,313 Ill.App. 317 |
| Parties | PEOPLE, FOR USE OF VANCIL MOTOR CO. v. WEAVER ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Christian County; James G. Burnside, Judge.
Debt action by the People, for the Use of the Vancil Motor Company, against Allin De C. Weaver and others to recover upon the official bond of a constable for the value of an automobile not delivered under a writ of replevin. From a judgment for defendants, plaintiff appeals.
Reversed and remanded.
Flesher & Taylor, of Taylorville, for appellant.
W. S. Greer, of Taylorville (Harold Broverman, of Taylorville, of counsel), for appellees.
This was an action of debt brought by the appellant in the Circuit Court of Christian County, Illinois, on the official bond of Allin De C. Weaver, a constable, and Lillian W. Hawes and T. B. Williams, sureties on his bond. Judgment was entered in favor of the defendants, from which plaintiff has appealed.
The complaint alleged and the proof established that Allin De C. Weaver, a constable, had served and executed a certain writ of replevin issued by a justice of the peace of Christian County, Illinois, by replevining an automobile from one Hubert Morse in a suit filed before said justice of the peace by the Universal Discount Company. The trial of the replevin suit before the justice of the peace resulted in a finding and judgment for the defendant. Upon appeal therefrom, the Circuit Court, upon trial de novo, found for the plaintiff company and entered judgment in its favor. Subsequent to the trial in the Circuit Court, the Universal Discount Company assigned all right, title and interest in the automobile replevied from Hubert Morse to the plaintiff, including all of its right to recover against Allin De C. Weaver, constable, and any right to recover upon his official bond as such constable.
The undisputed testimony established that the automobile was not delivered by the constable to the Universal Discount Company in compliance with the finding and judgment of the Circuit Court, upon demand therefor, nor to its assignee, the plaintiff appellant herein. Although a new demand was made on the constable to deliver the replevied property to the plaintiff appellant, the demand was never complied with and this suit was instituted against the constable and his official bondsmen seeking recovery of the value of the car.
The defendant appellee, Weaver, says that he delivered and returned the automobile to Hubert Morse in accordance with the directions and orders given to him by the justice of the peace. This would be no defense, since the judgment of the justice of the peace was not final, as the appeal therefrom was duly...
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