Cummins v. Holmes

Mr. Justice Scott delivered the opinion of the Court: This action was commenced in replevin by William H. Holmes and others, against James A. Cummins, as sheriff, to recover the possession of a stock of boots and shoes which the sheriff had levied on by virtue of an execution against one Samuel W. Gailey, as the property of the execution debtor. The case has been twice tried in the circuit court of Mercer county, and on both trials the issues were found in favor of plaintiffs, and judgment rendered accordingly. The first judgment, on the appeal of defendant, was reversed by the Appellate Court, and the cause remanded for a new trial, but the second judgment was affirmed by the Appellate Court, and defendant brings the case to this court on appeal. It is assigned for error the trial court erred in excluding, when offered as evidence, on the last trial, the judgment and execution under which defendant, as sheriff, claimed the right to the possession of the goods in question. One reason assigned in support of the position taken is, on the first appeal to the Appellate Court that court held it was error in the circuit court, on the first trial of the cause, to exclude the judgment and execution, and reversed the judgment of the trial court for that reason, and remanded the cause. It is thought the question made can not arise on the present record. It contains nothing that shows the judgment and execution, under which the sheriff claims the possession of the property in controversy, were offered in evidence on the first trial of the cause and were rejected by the court, nor is there anything in this record now before the court that shows for what reason or on account of what particular error the first judgment of the trial court was reversed. In the mandate of the Appellate Court which appears in this record, it is recited the judgment is reversed and the cause remanded “for such other and further proceedings as to law and justice shall appertain. ” No other direction is given to the trial court, nor does it appear from the mandate for what reason the judgment was reversed. It was held by this court in Coalfield Coal Co. v. Peck, 98 Ill. 139, the opinion of the Appellate Court may not be looked into to ascertain what that court decided in any given case,—it must appear from the judgment or final order of the court. (Harzfeld v. Converse, 105 Ill. 534.) In the case being considered it does not appear, from the judgment or final order., of the court made on the first appeal, what that court did decide, and so it can not be known, from anything in the record, that it was held the trial court erred in excluding the judgment and execution when offered as evidence on the first trial of the cause. It is not a matter of any consequence whether the court erred in overruling defendant’s motion for leave to amend the record of what is alleged to be a judgment by confession. An amendment such as defendant desired to have made, would have availed him nothing in the present suit. Under the decision of this court in Ling v. King, 91 Ill. 571, the execution issued by the clerk, and under which defendant levied on the property in controversy, was void. It was ruled in that case, the filing of the necessary papers to authorize the entry of a judgment in vacation by confession, is not of itself sufficient, but the judgment must in fact be entered up by the clerk before an execution can be legally issued, and that an execution issued when no judgment has in fact been entered, is void, and may be attacked collaterally. In the case now before this court no judgment had been entered by the clerk prior to or at the time the execution was issued. Papers had been filed that would authorize the entry by confession of a judgment against the debtor, but it was not in fact done. In this respect this case is “on all fours” with Ling v. King. Conceding, then, as must be done, the execution in the hands of defendant, when issued by the clerk, was void, and might be attacked collaterally, it is apprehended no subsequent entry of a judgment by the clerk on the papers filed in his office would validate the execution. That which is only voidable might be cured, but it would involve a legal solecism to say, that which is void from the beginning could be helped by any subsequent amendment. Treating the execution in the hands of defendant as void, he had no lien, in any event, upon the goods in question that he could maintain. Plaintiffs were mortgagees in possession of the property. That would give them the right of possession as against the mortgagor, and also against, creditors, whether their mortgage was valid or not, until their right was challenged in some mode known to the law. That has not been done in this case, and their previous possession was sufficient to warrant a recovery in the present action. The judgment will be affirmed. Judgment affirmed,.