Thomas v. Hinsdale

• Decision Date: 30 September 1875
• Citation: Thomas v. Hinsdale, 78 Ill. 259, 1875 WL 8467 (Ill. 1875)
• Parties: HARRIET C. THOMASv.S. C. HINSDALE et al.
• Court: Illinois Supreme Court

78 Ill. 259

1875 WL 8467 (Ill.)

HARRIET C. THOMAS

v.S. C. HINSDALE et al.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

Mr. C. F. REMICK, for the appellant.

Mr. A. B. JENKS, for the appellees.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was trespass, in the Superior Court of Cook county, brought by Harriet C. Thomas, plaintiff, against S. C. Hinsdale, S. C. Myers, and M. B. McDonough, defendants, and tried by a jury. Under instructions from the court for defendants, and to which plaintiff excepted, the jury found the defendants not guilty, on which the court, having overruled a motion for a new trial, rendered judgment against the plaintiff for costs, and she appeals.

The case is in a small compass.

Myers, it appears, came to Hinsdale's office, who was an acting justice of the peace, early in the morning of Sunday, and made affidavit for an attachment against the plaintiff. The magistrate issued the writ, and, at Myers' request, appointed McDonough a constable to execute it. McDonough, under the direction of Myers, took the writ and went to Lawndale, where Mrs. Thomas was doing business in the grocery line, with an express wagon, and levied the writ on her property, took the goods out of her possession, and they were afterwards sold, and the proceeds paid over to Myers.

On the return of the attachment before Hinsdale, Mrs. Thomas appeared and obtained a change of venue to justice Banyon. She failed to appear before Banyon and defend that suit, but brought this action of trespass.

The court ruled, inasmuch as she had appeared before Hinsdale and asked for and obtained a change of venue, she thereby condoned the trespass. This is the effect of the ruling of the court.

We have no doubt the court erred in so ruling. No case so holding can be found. A defendant in attachment, who has been wrongfully complained against,...