Lamping Bros. v. Payne

Mr. Justice Dickey delivered the opinion of the Court: It is insisted that the demurrer to this plea ought to have been sustained, and that the plea is faulty in not alleging that defendant “was duly elected and qualified as sheriff,” and in not showing that the executions mentioned did, upon their face, run “in the name of the People of the State of Illinois,” and in not showing that defendant indorsed upon the executions the time when they came into his hands, and in not showing that the goods in question were the property of Murphy at the time of the levy, and because the plea showed that the executions were void upon their face, etc. Without considering the question as to the importance of the matters herein presented, if they were found in a material and traversable part of the plea, the judgment of the circuit court must be sustained, upon the ground that all the allegations called in question relate merely to matter of inducement, which may all be rejected as surplusage, and still the plea shows a complete defense to the action; that the goods were the property of Murphy, and “that the said goods and chattels were not, nor were any part of them, in the plaintiffs, as alleged,” etc. By the demurrer to this plea, the plaintiffs confess, upon the record, that the goods in question are not the goods of the plaintiffs, but are the goods of one Murphy. That being so, the action can not be maintained, and it is wholly unimportant whether the defendant had or had not, as between him and Murphy, a lawful right to meddle with the goods. It is contended that the judgment should have been in the alternative, under section 22, chapter 119, Revised Statutes of 1874, page 863. The provision applies only to cases where the general property is in the plaintiff, and the defendant shows a special property, consisting of a right to hold the property, as against the plaintiff, only for a certain sum of money, as, where the defendant showed special property by a levy of a fi. fa. against the plaintiff, or where defendant holds the property as the property of the plaintiff, but by virtue of some lien, as carrier, warehouseman or otherwise. Upon this record, the plaintiff, by his own confession, has no interest in the property, and is not entitled to the possession under any circumstances. The judgment of the court below is affirmed. Judgment affirmed.