Thatcher v. Maack
| Decision Date | 31 October 1880 |
| Parties | GEORGE L. THATCHERv.ERVIN MAACK. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the County Court of Cook county; the Hon. MASON B. LOOMIS, Judge, presiding. Opinion filed January 4, 1881.
Thatcher, the appellant, brought replevin in justice court against Maack, the appellee, to recover certain goods and chattels of the former, alleged to have been wrongfully taken and detained by the latter. The writ having been personally served on appellee, but the goods not found, the case was turned into trover, and recovery had before the justice for their value. Maack took an appeal to the county court, where the case was tried before the court and a jury. The plaintiff there made out his case by showing that one Bank being the owner of the chattels in question Feb. 21, 1877, executed to plaintiff a chattel mortgage thereon for a bona fide debt of $150, payable by him to plaintiff in eighteen months from that date, which was duly acknowledged and recorded. That Bank made default, whereby the property vested in plaintiff; but there was a question of fact in dispute, whether plaintiff immediately, or within a reasonable time took possession. The mortgage matured Aug. 24, 1878; but on the 20th of same month an execution was issued upon a judgment rendered in the previous May, before Kauffman, justice, against said Bank, and in favor of one Reamer, for $21.97 and costs, under which Maack, as constable, took and removed said goods and chattels August 28, 1878, as the property of Bank, it being claimed that the latter, and not Thatcher, the mortgagee, was still in possession. The defendant, Maack, justifying as constable, under said execution, offered in evidence the justice's docket, for the purpose of proving the judgment--as follows:
+--------------------+
¦“Frederick Reamer ¦)¦
+------------------+-¦
¦v. ¦)¦
+------------------+-¦
¦John Bank. ¦)¦
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In justice court, before H. A. Kauffman, J. P. Demand, $21.97. May 21st, 1878. Summons issued returnable May 27th, 1878, at 1 P. M. Summons returned by constable, Erwin Maack, served by reading to the defendant May 23d, 1878; suit called at 2 P. M. May 27 th, 1878, plaintiff sworn; after hearing the evidence, judgment rendered on account of work and labor of the plaintiff, and against the defendant for the sum of of $21.97 and costs of suit ( et sequiter).”
It appearing that the above words in Italics, showing the date of the judgment, were interlined, plaintiff's counsel objected to the docket as evidence, unless such interlineation was explained. The court sustained that view, and thereupon permitted the justice's clerk, who had produced the justice's docket, to explain the same, against the objection of defendant's counsel. The witness produced the wrapper enclosing the files in that case, whereon was a memorandum made by the justice showing the time of the rendition of the judgment and amount, which the bill of exceptions shows was admitted in evidence without objection. The witness then testified that about a year and a half after the judgment was rendered, he having heard that the want of a date in the docket entry had arisen in this present case, he, from the memorandum on the wrapper, interlined the date; that he immediately told the justice what he had done, who, as it appears, tacitly acquiesced. On this explanation, the court admitted the docket in evidence, and plaintiff's counsel excepted, and also offered in evidence an authenticated transcript of the judgments made by the justice March 14, 1879, which was the same as the docket, without the words in Italics. This was, on objection by defendant, excluded by the court. There was a verdict and judgment for defendant, and plaintiff appeals to this court.
Mr. F. C. RUSSELL, for appellant; that the judgment was void for uncertainty as to the place of return of the summons, cited Rev. Stat. 1874, Chap. 79, §§ 17, 122; Shufeldt v. Buckley, 45 Ill. 223; Evans v. Pierce, 2 Scam. 468; Steward v. Smith, 17 Wend. 517.
It was void for uncertainty in the date of its rendition: Rev. Stat. Chap. 79, § 122; Garfield v. Douglass, 22 Ill. 100; Zimmerman v. Zimmerman, 15 Ill. 84; The People v. Delaware, 18 Wend. 558.
The verdict is against the weight of evidence: Belden v. Inness, 84 Ill. 78.
Mr. AUGUST MARX, for appellee; that the mortgagee, should take possession within a reasonable time after the mortgage expired, cited Arnold v. Stock, 81 Ill. 407; Reed v. Eames, 19 Ill. 594.
The question whether the mortgagee took possession at a certain time was for the jury, and their finding will not be disturbed: Wooley v. Fry, 30 Ill. 158; Kightlinger v. Egan, 75 Ill. 141; Simons v. Waldron, 70 Ill. 281; Connelly v. The People, 81 Ill. 379.
The judgment cannot be impeached collaterally: Billings v. Russell, 23 Pa. St. 189; Lightsey v. Hardies, 20 Alb. 409; Tarbox v. Hays, 6 Watts, 398; Farr v. Ladd, 37 Vt. 156.
The bill of exceptions does not purport to contain all the evidence, and it will be presumed there was evidence before the court sufficient to authorize the judgment: Henry v. Halloway, 78 Ill. 356; ...
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