Strohm v. Hayes
| Decision Date | 30 September 1873 |
| Citation | 1873 WL 8543,70 Ill. 41 |
| Parties | HENRY STROHMv.JOHN R. HAYES. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Stephenson county; the Hon. WILLIAM BROWN, Judge, presiding.
Mr. U. D. MEACHAM, for the appellant.
Mr. J. M. BAILEY, and Mr. J. I. NEFF, for the appellee.
This was an action of replevin, in the Stephenson circuit court, brought by Henry Strohm against John R. Hayes, resulting in a verdict and judgment for the defendant, to reverse which, plaintiff appeals.
The principal error relied on is, that a trial was had without an issue having been made up to the defendant's fifth plea.
That plea was, in substance, that defendant was sheriff of Stephenson county, and, as such, had levied an execution in favor of Harrison Woodmanse, against Thomas H. Smith and I. D. Kennison, concluding with an averment that the property belonged to Smith and Kennison, and was not the property of the plaintiff. To this plea the plaintiff replied specially, setting up a chattel mortgage upon the property, made by Smith and Kennison to him, in which it was provided, in case the property was attached or claimed by any other person than Smith and Kennison, the plaintiff should have the right to take immediate possession, concluding with a verification.
Admitting the law to be as claimed by appellant, the fifth plea having set up matter of positive right by the levy of an execution, a special replication was proper, and was required, still it does not follow it was error to proceed to trial without a rejoinder to such replication. Appellant made no objection to proceeding to trial as the pleadings were. He might have put defendant under a rule to rejoin, or prayed judgment against the defendant for want of a rejoinder, but he did not. Barnett v. Graff, 52 Ill. 170. In analogy to the rule of proceeding held in Mager v. Hutchinson, 2 Gilm. 266, it may well be questioned if it is not too late to raise the objection for the first time in this court. But, however that may be, this court has held, in a large number of cases, and it is now the settled doctrine of this court, that, proceeding to trial, an issue not being made up on one of the pleas, it is considered as waived, or the irregularity cured by the verdict. Ross et al. v. Reddick, 1 Scam. 73; Armstrong v. Mock, 17 Ill. 166.
The case was tried precisely as though a formal issue had been made up on the fifth plea. The plaintiff had the benefit of the chattel mortgage set out in his special replication to it, and its validity was the important fact tried by the jury. He can not now complain. Bunker v. Green, 48 Ill. 243. And the court would indulge the presumption, if necessary, that all evidence properly admissible under the unanswered replication was heard precisely as though the issue had been formed. Beesley v. Hamilton, 50 ib. 88. There is nothing in this objection. Really, the special replication was nothing more than a reiteration by plaintiff of his right, setting out the muniment of his title, to-wit: a chattel mortgage.
Another objection made by appellant is, the court permitted appellee to go into proof of fraud in the execution of the mortgage, without any plea charging fraud.
The answer to this is, when plaintiff set up the mortgage as his title to the property, it became exposed to all attacks which could be made against it. The party attacking, in such a case, is not required, by plea, to disclose the grounds of the attack. He who produces a mortgage in evidence is presumed to be prepared to show it was made in good faith, and for an honest purpose, and valid in other respects. Suppose the instrument had no seal, or was not acknowledged, it surely would be exposed, on trial, to such objection, though not pleaded.
Another objection is, that appellee was permitted to cross-examine the witness, who was ...
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