Sullivan v. Dee
| Decision Date | 28 February 1881 |
| Citation | 8 Bradw. 263,8 Ill.App. 263 |
| Parties | P. M. SULLIVANv.MARY DEE. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the City Court of East St. Louis; the Hon. CHAS. P. WARE, Judge, presiding. Opinion filed April 7, 1881.
Messrs. FLANNIGAN & CANBY and Mr. J. B. MESSICK, for appellant; that an amendment in mere matter of form gives no ground for a continuance, cited Scott v. Cromwell, Breese 25; Eames v. Morgan, 37 Ill. 260.
Where a material amendment is made to a declaration, it becomes a new declaration which the party has a right to prepare to defend: Brown v. Smith, 24 Ill. 198; Archer v. Claflin, 31 Ill. 307.
A pending action of replevin for the recovery of the goods is a good plea to an action of trespass against the defendant, and another for taking the same goods: Karr v. Barston, 24 Ill. 581.
Pleading over after demurrer sustained to a plea in abatement is not a waiver of the plea: Delahay v. Clement, 3 Scam. 201; Weld v. Hubbard, 11 Ill. 573.
To warrant exemplary damages, gross fraud, malice or oppression should appear: Chicago v. Martin, 49 Ill. 241; T. P. & W. R. R. Co. v. Arnold, 43 Ill. 418; Waldron v. Marcier, 82 Ill. 550; Gravett v. Mugge, 89 Ill. 218; Becker v. Dupree, 75 Ill. 167; Miller v. Kirby, 74 Ill. 242.
Appellee cannot maintain trespass quare clausam when she has no interest in the premises: Halligan v. C. R. I. & P. R. R. Co. 15 Ill. 558; Dean v. Comstock, 32 Ill. 173.
In trespass de bonis asportatis no more than the value of the property can be recovered: 2 Sedgwick on Damages, 487; Johnson v. Camp, 51 Ill. 219; Hessing v. McCloskey, 37 Ill. 341; Gilson v. Wood, 20 Ill. 37.
Mr. GEO. D. GREEN and Mr. L. H. HITE, for appellee; that pleas in abatement should be filed at the first opportunity, cited Randolph v. Emerick, 13 Ill. 344; Moeller v. Quarrier, 14 Ill. 280; Gilmore v. Nowland, 26 Ill. 200; Archer v. Claflin, 31 Ill. 307.
This was trespass quare clausum fregit and for seizing, carrying away and converting certain articles of furniture.
The court at the instance of plaintiff instructed the jury that if they believed from the evidence the property in the declaration mentioned was that of Mary Dee, then the jury were bound to find for the plaintiff, Mary Dee, such amount as would compensate her for the damages she had sustained. This made the right of recovery depend solely on the one question of the plaintiff's right of property. It wholly ignored the issue on the plea of not guilty; and virtually informed the jury that notwithstanding it might be that no trespass whatever had been committed, or even if defendant was in no way connected with the act of White and Stack in taking the furniture, yet plaintiff had a cause of action against him, provided the furniture described in the declaration belonged to her. It was error to give such an instruction. The second instruction given for the plaintiff was as follows: “If the jury believe from the evidence that the defendant willfully and wrongfully by his agents entered the place of dwelling of the plaintiff and willfully and wrongfully seized and carried away the goods and chattels of the plaintiff described in the declaration with a mortgage executed by Thomas Dee, then it makes no difference if plaintiff has retaken said property by a writ of replevin, the jury will find a verdict for the plaintiff, in such sum, not exceeding $5,000, as they believe from the evidence Sullivan should pay as smart money for the wrong done.” There is no question, from the evidence, but that Thomas Dee, husband of plaintiff, rented the dwelling house and occupied the same as the head of the family and lawfully licensed the entry therein. There is a question, however, as to whether the furniture in the house upon which he had given a mortgage to defendant was his property, as represented by him, or was the separate property of his wife. The tort if any was committed, was plainly caused by the fraudulent act of plaintiff's husband; and there is no evidence to show that defendant had any notice that plaintiff even claimed the furniture as her...
To continue reading
Request your trial