Dinet v. Eilert

McAllister, J. To maintain his action, it was incumbent upon the plaintiff below to show, by a preponderance of evidence, that he had an absolute or special property in the house, boiler and engine, and the actual possession or the immediate right to it at the time of the alleged conversion by the defendants. Eisendrath et al. v. Knauer, et al. 64 Ill. 316; Forth v. Pursley, 82 Ill. 152. The plaintiff sought to show his right of property and of possession in and to the subject matter in question by becoming the purchaser of the same, at a sale thereof by one Glanz, under a chattel mortgage purporting to have been given to him upon the property, by one Charles Schmidt, April 30,1880, to secure Schmidt’s note of five hundred dollars and interest, payable in one year from that date; such sale occurring August 6, 1880. It was admitted on the trial that the land whereon the house in question stood, was during the transactions involved, owned by the defendant Dinet. It appeared also that the house was erected in 1873, by one Dreschler, who at that time was the tenant of Dinet under a parol lease. But there was no evidence tending to show that the building was to be personal property, if not removed by Dreschler before he quit the possession of the premises. He had quit the possession, but at what time does not appear, nor is there any evidence of any contract or arrangement between Schmidt and Dreschler, or between him and Dinet, by which the former acquired any property interest in such building, which would authorize him to sever it from the realty or confer any such right upon another. The house being on Dinet’s land, was prima facie evidence that it was his property. Chatterton v. Saul, 16 Ill. 149; Ogden v. Stock, 34 Ill. 522; Ewell on Fixtures, 166 et seq. The plaintiff was therefore subject to the burden of overcoming thatfacie case by evidence sufficient to rebut it. To do so, he introduced evidence to the effect that August 4, 1880, Dinet issued his distress warrant to a constable, authorizing him to distrain upon the goods, etc., of said Charles Schmidt, liable to distress, to satisfy him for $199.47, rent due July 1, 1880, from Schmidt to him, of the same premises. The constable, whether by Dinet’s directions or not does not-appear, levied that warrant upon the property in question, as Schmidt’s property; and, after the blunging of this present suit, it seems that a justice of the peace issued an order or special execution, for the sale of the property in question, and that it was sold, as appears from the evidence. Appellee’s counsel claim that Dinet is by sucli proceedings estopped to show that Schmidt in fact had no title to the property. The plaintiff below undertook to give these proceedings in evidence, as showing Dinet estopped thereby. We are of opinion that they do not show ground for holding Dinet as estopped thereby as res judicata. (1) The judgment itself was not introduced. (2) The matters introduced failed to show the court had jurisdiction of Schmidt s person. There was no service of summons or recital of service. There was no constructive service shown, because there was no affidavit under section 19 (R. S. 1874, p. 666). (3) The right of Schmidt to the property was not in issue, and was not adjudicated in that proceeding. In order that the judgment operate as res judicata, it is essential that the court have jurisdiction of the person and subject matter. Bigelow on Estoppels, p. 13, et. seq. It is also essential to an estoppel that it be mutual. So that the same parties are privies might be bound by, and take advantage of it. Bigelow on Estoppel, 47. The plaintiff in this action of trover was not a party to the distress proceedings; neither is he in any sense a privy to the judgment, if valid. The doctrine of estoppel in pais will not apply, because it is not pretended that the plaintiff was induced by the proceeding on the part of Dinet to alter his situation in any respect. So that the whole matter is reduced to the question whether Dinet, by causing his distress warrant to be levied on the property in question on the 6th of August as Schmidt’s property, is thereby estopped to show that it was not his property ; or to be more accurate, estopped to show that it was not his property when he gave the mortgage to G-lanz, April 30, 1880. Counsel have furnished ns no aid in the investigation. But from the examination we have been able to give to the question, we find that the courts have not carried the doctrine of estoppel to that extent. The act is regarded as operating no farther than as an admission, which is frequently founded on erroneous information, and therefore not conclusive like an estoppel. Loomis v. Green, 7 Greenleaf, R. 386; Morris v. McCamey, 9 Ga. 160; Patterson v. Lytle, 11 Pa. St. 53; Cassel v. Williams, 12 Ills. 387; Stimson v. Farnham, Law. R. 7 Q. B. 175. The court below did not instruct the jury that such proceedings by Dinet amounted to an estoppel, but told them that, “ evidence that the defendants have caused the property to be levied upon under attachment, before a justice or distress warrant, if such is the fact, or that Dinet has made any statement implying that the property in suit was the property of Schmidt, if such is the fact, tend to rebut the presumption that the property in suit belonged to Dinet.” Row the attachment thus referred to was one which was sued out by Riehoff, the other defendant, in his own name. There was no evidence tending to show that Dinet was in any respect connected with the issuing or levying such attachment. It was solely Riehoff’s act, whose interest was adverse to that of Dinet. So that it was not only erroneous, not being based upon any evidence, so far as Dinet was concerned, but very prejudicial to him. It is too clear for argument that this act of Riehoff could have no tendency to rebut the presumption that the property belonged to Dinet. We'think, also, that the court erred in refusing instructions asked on behalf of Dinet. But for the error indicated, the judgment must be reversed and the cause remanded for a new trial. Reversed and remanded.