Stevison v. John Earnest.

• Decision Date: 30 September 1875
• Citation: 80 Ill. 513,1875 WL 8787
• Parties: JOE H. STEVISON et al.v.JOHN EARNEST.
• Court: Illinois Supreme Court

80 Ill. 513

1875 WL 8787 (Ill.)

JOE H. STEVISON et al.

v.JOHN EARNEST.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Messrs. MCCULLOCH, STEVENS & WILSON, and Messrs. COOPER & BASSETT, for the plaintiffs in error.

Mr. H. B. HOPKINS, Mr. T. CRATTY, and Mr. J. HOUGH, for the defendant in error.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was an action of debt, by John Earnest, coroner of Peoria county, who sues for the use, etc., against Joe H. Stevison, and David McKinney, his surety, on a replevin bond. The suit was commenced in Peoria county, whence the venue was changed to Knox county, in the circuit court of which county trial was had in March, 1873, resulting in a judgment in favor of the plaintiff for $9200 debt, and $5532.80 damages, and the record is brought here by the appeal of the defendants.

It appears that Mrs. Mary Chapman, wife of Joseph Chapman, was the owner of a large stock of millinery goods, then being in a rented room, in which she had been doing business in Peoria, which, on the first day of September, 1866, she bargained and sold to one Stevens, for the agreed price of $10,000. In part payment therefor Stevens conveyed to Mrs. Chapman a house and lot, valued at $2000, and paid her $1500 in cash, which he claims to have borrowed from his brother-in-law, Joe H. Stevison; and for the remaining $6500 he gave her his judgment note, payable one day after date. By the agreement of the parties, reduced to writing, and signed at the same time, the note was to be paid as follows: on the first of October following, one-half of the gross receipts of the sale of the goods up to that date; on the first day of December, two-thirds; on the first day of January, one-half; on the first day of April, one-third; on the first day of July, two-thirds; on the first day of September, one-third of the same; the same order and rate of payment to be observed from year to year until the note should be canceled. It was also agreed the note should be secured by chattel mortgage on the goods; that Stevens should not otherwise pledge, mortgage or incumber the stock, and that he should sell only at the ordinary retail trade. Judgment was not to be entered on the note unless Stevens should fail to keep Mrs. Chapman secured, as thereby provided, or to make the payments as thereby provided, or the goods should be claimed or attached by any person, or Stevens should be sued, or she should feel unsafe lest her claim should be lost or delayed. But on the occurrence of either of these events, judgment should be entered and execution issued. It was further agreed that Mrs. Chapman should not engage in retail millinery business in Peoria as long as Stevens continued in it.

The chattel mortgage was executed, as provided by the agreement, but not recorded.

The October, November and December payments were made in conformity with the terms of the agreement, but on the 29th of December, Joe H. Stevison had taken possession of the entire stock, and claimed he owned it by virtue of a purchase from his brother-in-law, Stevens. On the same day Mrs. Chapman caused judgment to be entered on the note, and execution to issue thereon; but, there being no seal to the execution, another execution was issued on the 31st of December, which was levied on the goods. While the goods were in the custody of the sheriff, Stevison replevied them. Mrs. Chapman then replevied them again, and Stevison thereafter re-replevied them. Subsequently, by agreement of the parties, the last two suits were dismissed, and the first suit only was left pending for trial. At the January term, 1867, of the Peoria circuit court, Stevens moved to set aside the judgment by confession, urging in support thereof, that the note lacked his signature; that it was payable only according to the terms of the written contract, and that he was defrauded in the purchase of the goods, setting forth wherein.

The court ordered that Stevens be let in to plead, but that the lien of the judgment remain. The cause was then properly docketed for trial, and the plaintiff therein filed an amended declaration, counting upon the judgment note, contract, etc.; and the defendant therein filed pleas, setting up fraud in the sale of the goods, failure of consideration, etc. Issues were joined on the pleas, and the venue changed to Woodford county, where, at the April term, 1869, of the circuit court, trial was had and judgment given for the plaintiff in the cause for $5760. The judgment provided that the lien of the former judgment by confession, reserved by the order of the Peoria circuit court, in opening the judgment, stand in force as security for the amount.

The venue in the replevin suit, in favor of Stevison, against the sheriff, for the stock of goods, was changed to Woodford county, first, and afterwards to Marshall county. At the October term, 1869, of the circuit court of that county, the cause was dismissed for non-compliance with a previous order of the court, requiring the plaintiff to give security for costs, and the property ordered to be returned.

This suit is upon the replevin bond executed in that suit.

The defendant's pleas, upon which issues were joined and trial had, were, 1st, non est factum; 2d, nul tiel record, as to the record and proceedings in the replevin suit set out in the declaration; 3d, that the merits of the case were not tried in the replevin suit, but that it was dismissed for failure to give security for costs, and that at the time of the commencement of the suit, the property and right of possession of the goods were in the defendant, Stevison.

Upon the trial, plaintiffs read in evidence, against the defendant's objections, the original affidavit, declaration, writ, indorsement thereon, transcript of Peoria circuit court on...