Clevenger v. Dunaway

Mr. Justice Scholfield delivered the opinion of the Court: . The points relied upon, in the printed argument of counsel, for a reversal of the judgment of the court below, are four: First, that the court erred in admitting in evidence the record of the judgment iri the proceeding on the distress for rent, the warrant for which was issued prior to that by virtue of which the property in controversy was claimed to have been seized. Second, that the court erred in giving appellee’s fourth instruction. Third, that the judgment is not supported by the evidence. Fourth, that the damages, as assessed, are excessive. 1st. Since it is provided by § 22, chap. 80,Bev. Stat. 1874, p. 660, in proceedings on distress for rent in the circuit court, “ when the defendant has been served with process or appears to the action, the judgment shall have the same force and effect as in suits commenced by summons, and execution may issue thereon, not only against the property distrained, but also against the other property of the defendant,” it can hardly admit of question that a judgment so rendered is final, and conclusive between the parties as to all matters that should have been determined in that proceeding, the chief of which is, whether rent was due, and if so, what amount. This section was enacted first in 1873, and has been in force since July 1, of that year, and is, hence, applicable to the judgment in question. See laws of 1873, p. 121, § 23. It was agreed between the parties, that the original papers had been lost, and, necessarily, secondary evidence of their contents was then admissible. The evidence tended to identify the parties with the present parties, and to show that the rent in question was the same rent now claimed to have been due, as justifying the issuing of the distress warrant under which appellant claims protection. The defendant appeared and defended. That warrant was issued and the trial thereon had, after the rent here in question was due; and we see no reason why, if the rent was due appellant, for which he issued the warrant under which he now seeks to defend, he was not entitled to judgment in that proceeding. The objection of appellant was general. If he relied upon the insufficiency of the evidence to show the contents of the lost papers, or to identify the claim for rent with that invoDed in the present controversy, he should have made that specific objection at the time, either against the admission of the evidence, or by motion to exclude it from the jury. Such an objection, if then made, might have been obviated by additional and more satisfactory evidence, and it can not, therefore, now be urged here. Howell et al. v. Edmonds, 47 Ill. 85; Buntain v. Bailey, 27 id. 410; Gillespie v. Smith, 29 id. 473; President and Trustees v. Holland, 19 id. 271; Swift v. Whitney, 20 id. 144; Sargeant v. Kellogg, 5 Gilm. 273; Harmon v. Thornton, 2 Scam. 351. 2d. The fourth instruction, given at the instance of plaintiff, to which objection is taken, is, as we understand the record, based upon and sustained by evidence given by appellee. The court does not assume to determine whether the evidence of appellant or appellee is entitled to most credit, but leaves that to be determined by the jury. The witnesses were before the jury, and they may have been justified in giving more credence to the one than the other; and it does not follow because the evidence was contradictory on this point, it was error to instruct them as to the conclusion of law, upon the hypothesis that they found the evidence to sustain either one view or the other. The legal conclusion is unobjectionable, and the instruction was not improper. 3d. We are inclined to think the preponderance of the evidence on the question of whether there was, in fact, any rent due from appellee to appellant, when the distress warrant was issued, was with appellee—certainly we can not say it so decidedly preponderated the other way as to justify the setting' aside of the verdict of the jury, even if there were no other evidence properly affecting the question of whether appellant committed a trespass. But we think the evidence of the former judgment in regard to that question was conclusive. It determined there was no rent due from appellee to appellant, and appellant’s only remedy then was by a correction of that judgment, if wrong, in this court. 4th. There was evidence of actual damages beyond the amount of the judgment, although, it may be, not a prepon-' deranee—but the case is one in which, under all the circumstances, we are of opinion some amount of exemplary damages might also have been given. After a j ury had determined no rent was due appellant, it savors strongly of malice and a desire to oppress, that, disregarding the judgment on that verdict, he should again, and for the same claim of rent, issue his warrant and seize appellee’s property. We discover no grounds sufficient to authorize a reversal of the judgment, and it will be affirmed. Judgment affirmed.