Reynolds v. Mandel

• Decision Date: 24 October 1898
• Citation: 175 Ill. 615,51 N.E. 649
• Parties: REYNOLDS v. MANDEL et al.
• Court: Illinois Supreme Court

175 Ill. 615

51 N.E. 649

REYNOLDS

v.MANDEL et al.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from appellate court, First district.

Action by Henry J. Reynolds against Leon Mandel and others for wrongful seizure and sale of property under a chattel mortgage. Judgment for defendants was affirmed in the appellate court (73 Ill. App. 379), and plaintiff appeals. Affirmed.

J. S. Huey and Frank J. Smith, for appellant.

Tenney, McConnell, Coffeen & Harding, for appellees.

PHILLIPS, J.

On August 10, 1893, the appellees took possession of certain property included in a chattel mortgage given by appellant, for an alleged breach of its conditions, and thereafter sold the same in pursuance of its provisions, crediting the proceeds thereof, which did not satisfy the debt and the expenses of the custodian for the care of said property by $14,234, for which judgment was obtained December 23, 1893. In the suit to recover said balance of debt and said expenses the appellant interposed a defense. Thereafter, on December 21, 1894, the appellant brought this suit in trespass for the alleged unlawful seizure of said goods, etc. The defendants (appellees) filed the general issue and certain special pleas; the special plea in controversy being filed on leave, after the conclusion of the plaintiff's evidence. That plea set up the taking of possession of said property, under and by virtue of the terms of said mortgage, for an alleged breach in not insuring the same for the mortgagees' benefit, as agreed, and because said property was about to be sold on legal process against the mortgagor, this appellant; the sale thereof, and application of the proceeds, $5,279, as a credit on the said indebtedness; the subsequent suit, against appellant to recover the balance of said debt due, and the said expenses of the custodian's fees for the care of said property; the defense interposed to said suit, that said goods and chattels had been unlawfully taken under said chattel mortgage; that issue was joined on said defense; and that appellees recovered judgment in said causes of action for $14,234, which judgment is alleged to be in full force and effect, etc. A general and special demurrer was interposed to the plea, which was overruled; and, the plaintiff electing to stand by the demurrer, the suit was dismissed, and judgment given for defendants for costs, which was affirmed by the appellate court.

The points made against this plea are: First, that it was an abuse of discretion in allowing the plea to be filed after the conclusion of the plaintiff's evidence; second, that it does not state the facts from which the court can determine whether the matters involved in this suit had been adjudicated; third, that it does not appear from said plea that the lawfulness, or the contrary, of the entry and seizure was adjudicated; fourth, that the plea is double. The leave to file this plea, and its sufficiency, are the only questions presented.

No exception was taken to the order of the court granting the motion for leave to file the plea. Therefore the question of the abuse of discretion cannot be raised. Deitrich v. Waldron, 90 Ill. 115. This is held to be the rule, also, in sustaining a motion to strike a plea. Reed v. Horne, 73 Ill. 598. The appellant, without excepting, promptly raised an issue of law by filing a demurrer to the plea, which was an admission that it was properly filed. Bobe v. Frowner, 18 Ala. 89; 6 Enc. Pl. & Prac. 335; Caveny v. Weiller, 90 Ill. 158. This is also the rule in chancery practice. Griggs v. Gear, 3 Gilman, 2.

The second and third points raise substantially the question as to whether the plea sets up facts...