Sayles v. Mann
| Decision Date | 31 October 1879 |
| Citation | 4 Bradw. 516,4 Ill.App. 516 |
| Parties | JULIA W. SAYLESv.ORRIN L. MANN ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. S. M. MOORE, Judge, presiding. Opinion filed November 5, 1879.
Mr. F. J. CRAWFORD and Mr. L. W. PERCE, for appellant; that a court of equity will interfere unless a court of law would be able to give full relief, cited High on Injunctions, 313; Stewart v. Great Western 2 Dr. & Sm. 438.
Before appellant heard of the replevin proceedings, the term had elapsed and the judgment against her became final; it was too late to apply to set aside the judgment: Freeman on Judgments; Cook v. Wood, 24 Ill. 295.
The appellant has no remedy against the sheriff for the pretended levy upon her goods; it was a mere pen and ink levy: Minor v. Herriford, 25 Ill. 344; Havely v. Lowry, 30 Ill. 446; Davidson v. Waldron, 31 Ill. 120; Logsden v. Spivey, 54 Ill. 104.
There being no remedy at law, appellant has a remedy in equity by injunction: High on Injunctions, 78 Mar. Ins. Co. v. Hodgsdon, 7 Cranch, 332; Hubbard v. Hobson, Breese, 190; Griggs v. Gear, 3 Gilm. 2; Owens v. Ranstead, 22 Ill. 161; Vennum v. Davis, 35 Ill. 568; Biggins v. Brockman, 63 Ill. 316; Hilliard on Injunctions, 313.
Mr. JOHN M. GARTSIDE, for appellees; that equity will not interfere where there is ample remedy at law, cited Albro v. Dayton, 28 Ill. 325; Long v. Barker 85 Ill. 431; Tallman v. Becker, 85 Ill. 183; Ramsey v. Perley, 34 Ill. 504; Smith v. Powell, 50 Ill. 21; Wangelin v. Goe, 50 Ill. 459; Browne v. Hurd, 56 Ill. 317; Holmes v. Stateler, 57 Ill. 209.
Appellant has an adequate remedy at law against the sheriff, or against the attorney for neglecting to prosecute the replevin suit, or against her husband for interfering with her property without her consent: Pike v. Colvin, 67 Ill. 227; Stevens v. Walker, 55 Ill. 151; Emerson v. Clayton, 32 Ill. 493; Martin v. Robson, 65 Ill. 129; Chestnut v. Chestnut, 77 Ill. 346.
The sheriff is estopped by his return from denying its truth; Bowen v. Parkhurst, 24 Ill. 257; Rivard v. Gardner, 39 Ill. 125.
In cases of doubt parties should be confined to their legal remedy, though equity might take jurisdiction: Wing v. Sherer, 77 Ill. 200; Hacker v. Barton, 84 Ill. 314.
A volunteer agent is responsible to his principal for loss occasioned by his negligence: Dennis v. McCagg, 32 Ill. 429; Casey v. Casey, 14 Ill. 112; Doan v. Duncan, 17 Ill. 274.
An injunction will not issue to restrain an act already committed: Wangelin v. Goe, 50 Ill. 459; Scott v. Whitlow, 20 Ill. 310; Winkler v. Winkler, 40 Ill. 179.
Jurisdiction of a court cannot be attacked in a collateral proceeding: Osgood v. Blackmore, 59 Ill. 261; Searle v. Galbraith, 73 Ill. 269.
A party who has been guilty of laches cannot claim the aid of a court of equity: Dickerman v. Burgess, 20 Ill. 266.
As to inference of ratification from circumstances: Searing v. Butler, 69 Ill. 575; Malburn v. Schreiner, 49 Ill. 69; Harris v. Simmerman, 81 Ill. 413; Brownell v. Dixon, 37 Ill. 187.
As to estoppel in pais: Smith v. Newton, 38 Ill. 230; 2 Smith's Lead. Cas. 542; Dazell v. Odell, 3 Hill, 219; Welland Canal Co. v. Hathaway, 8 Wend. 483; Copping v. Gould, 16 Wend. 531; Titus v. Morse, 40 Me. 348; International Bank v. Bowen, 80 Ill. 541.
This was a bill in equity brought by appellant, Julia W. Sayles against O. L. Mann, coroner of Cook county, B. L. Sawyer, his deputy, and Mary Leary, appellees, to enjoin them from executing a writ of retorno habendo, and from otherwise further attempting to remove out of her possession certain goods and chattels of which she was the owner, and for general relief. A preliminary injunction was granted, as prayed for. Appellees filed a general demurrer to the bill, which was sustained by the court, and a decree was entered dissolving the injunction and dismissing the bill. From this decree Mrs. Sayles has appealed to this court, and asks a reversal thereof.
The case presents some rather extraordinary features, as will be seen by a reference to the facts set forth in the bill, the truth of which is admitted by the demurrer. Taking them as true, we are at a loss to conceive upon what grounds the court below sustained the demurrer.
The bill states that appellant is the wife of John E. Sayles, to whom she was married in December, 1872; that she resides with her husband and family in the city of Chicago; that in her girlhood she, with her own hands, painted and procured twenty-six oil paintings; that on her wedding day a friend gave her, as a wedding present, an upholstered chair; that her father, in April, 1877, gave her the residue of the goods mentioned in the bill, consisting of carpets, chairs, tables, bedsteads, bureaus, dressing-cases, book-stands, range and its furniture, worth in the aggregate, about $1,000. That she is the owner in her own right, as her sole and separate property, of all of said goods and chattels, and is entitled to the possession and control thereof, and that the same had been in her custody and use ever since she obtained them, until December, 12, 1878, when they were demanded of her by Mann and Sawyer under a writ of retorno habendo. That she then, for the first time, learned that appellee Leary had obtained a judgment in the Superior Court of Cook County against John E. Sayles, husband of appellant, on which Leary had taken out a fi. fa., directed to the sheriff of Cook county to execute, whose deputy, a few days afterward, while appellant was absent from home, pretended to levy the same on appellant's property, being the same mentioned in the bill of complaint, the sheriff pretending that the same belonged to her husband, although well aware that the property belonged to appellant, and was not subject to the execution against her husband.
That the sheriff did not take possession of the property, but endorsed his pretended levy on the execution, and went away. That there was no removal of the goods, but they remained in the house in the same condition as they had been, so that upon her return home there were no indications of any officer having been there, nor was she in any manner informed or aware of any one having been at the house, or of anything having been done, or attempted, relating to her property. She was wholly ignorant, and kept in ignorance, of any judgment or execution against her husband, and knew nothing of the pretended levy on her goods.
That a few days after the pretended levy, her husband, without her knowledge or consent, and without authority from her, caused a writ of replevin to be sued out of the Circuit Court of Cook county, in her name, as plaintiff, and against the sheriff, his deputy, and Leary, for appellant's goods, so pretended to have been levied on; and her husband, pretending to be her agent, gave the coroner a receipt for the goods, as having been replevied from the sheriff; and thereupon the same were released from the pretended custody of the sheriff under the supposed levy, the goods, meanwhile, remaining undisturbed in the house. That her husband, without her authority or knowledge, employed, as plaintiff's attorney in the replevin suit, Mr. Adcock, and entrusted the management of it to him, of which appellant was wholly unaware. That on November 8, 1878, at the October term, the replevin suit was reached on the regular call of the docket, and was dismissed for want of prosecution, and without trial on the merits, and a judgment was entered against appellant for costs and for a return of the property; of each and all which said proceedings she had no notice, and was wholly ignorant.
That on December 12, 1878, and after the October term had elapsed, appellees Mann and Sawyer, under the writ of retorno habendo demanded of appellant the goods in question, took possession thereof, and put a custodian in her...
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