Clow v. Gilbert

Mr. Justice Waterman delivered the opinion of the Court. This is an appeal from a judgment of the Circuit Court, rendered there upon a trial had upon an appeal from a judgment rendered by a justice of the peace. Appellants had, in an action of replevin begun before a justice of the peace, taken away from the possession of appellee certain property; that action of replevin had been dismissed by the justice, but no writ of retorno had been awarded. Appellants not having returned the property it was demanded from them by appellee and upon their refusal the present action was brought. The principal contention of appellants is, that no writ of retorno having been issued by the justice, the-present action can not be maintained. The justice of the peace had no jurisdiction of the action of replevin brought by appellants, either to proceed with the suit or to issue a writ of retorno; the justice could, in that action, only do what he did—dismiss the suit; because the affidavit filed by appellants was insufficient to authorize the bringing of an action of replevin. The statute concerning replevin provides that before the writ issues the person bringing such action shall file an affidavit showing, among other things, that the property described in the writ and about to be replevied has not been seized under any execution or attachment against the goods and chattels of the plaintiff liable to execution or attachment; the affidavit filed by appellants contained no such averment; it therefore was insufficient to authorize the issue of the replevin writ. The jurisdiction of a justice of the peace not only depends upon the statute, but it is acquired only in pursuance of the statute. While it is perhaps the case that having inadvertently or mistakenly issued a writ of replevin upon an insufficient affidavit, the justice might permit such affidavit to be amended, and after amendment proceed with the cause, yet he would not have jurisdiction to proceed with the cause and render a binding judgment therein, until an affidavit in accordance with the statute was filed. Ho amended affidavit was filed, and the justice being without jurisdiction to do otherwise than dismiss the suit, could not award a writ of retorno. The opinion of Jndge Adams, before whom the cause was' tried, states the facts and the law clearly. It is as follows : Jambs H. Gilbbbt ) jn yie circuit Court of Cook County. Clow bt al Í Opinion of the Hon. Francis Adams. This is an appeal suit which was tried by the court, a jury being waived by the parties. The facts appearing in evidence are as follows : 1. March 30, 1892, a writ of attachment issued out of this court at the suit of James B. Clow, Will E. Clow and James M. Johnson (doing business under the firm name of James B. Clow & Son) against one Wm. T. Woodley. The sheriff made a return of the writ, dated April 15, 1892, showing that March 30, 1892, he served the writ by levying on the interest of Woodley in certain goods and chattels mentioned in the return, among which are nine enameled bath tubs and stands, and nine bath covers. The return also states that the nine bath tubs, stands and covers were taken from the sheriff by constable John Hoonan on a writ of replevin, issued by Justice Glennon, April 2, 1892. March 28, 1892, a writ of attachment issued out of this court at the suit of the J. L. Mott Iron Works against the said Woodley. The sheriff’s return to this writ, of date April 15, 1892, shows a levy made March 28, 1892, on the same goods and chattels levied on in the first mentioned attachment suit. The last mentioned writ was the first levied. The returns on both writs are substantially the same. 2. April 2, 1892, a writ of replevin was sued out of Justice Glennon’s court by James H. Clow, Will E. Clow and James M. Johnson (composing the firm of James B. Clow & Son) against James H. Gilbert, the plaintiff in this suit,' and Woodley, to recover nine bath tubs and rims. The affidavit for the writ was made by James M. Johnson, one of the defendants in this suit. The constable’s return on the writ of date April 2, 1892, shows that he executed it by taking the property thereon described and delivering it to the plaintiffs in the writ and by reading, etc. The writ was returnable April 8,1892, but the suit was continued by the justice from time to time till May 9, 1892, when it was dismissed. There was no order or judgment for a return to the defendant of the replevied property. June 11, 1892, James H. Gilbert and Woodley sued out a summons in Justice Glennon’s court against James Clow, Will E. Clow, James M. Johnson and Clarence Knight on a demand for $200. The summons was returnable June 1Y, 1892, but was continued then, and from time to time until July 15, 1892, when it was dismissed on motion of the plaintiffs. It was assumed on argument that the last mentioned suit was on the replevin bond, but there is nothing in the record to show what was 'the subject-matter of the suit. May 29,1893, James H. Gilbert, the .sheriff, sued but a summons from George P. Foster, a justice of the peace, against James B. Clow and James M. Johnson on a demand not exceeding $200. The summons was returnable June 6, 1893, on which date a change of venue was taken to Justice Everett, and such proceedings were had that June 1Y, 1893, a judgment was rendered for the plaintiff for $200, from which judgment the present appeal was taken. The suit was tried as in trover, both in the justice court and here. It was proved on the- trial that prior to the commencement of the suit, demand was made on the defendant, Johnson, for the goods in question, in response to which he said his firm had sold them. The plaintiff relics on the legal possession of the sheriff, as shown by the attachment writs and the returns thereof, upon the demand and refusal above mentioned, and upon the wrongful taking of the goods in the replevin suit. The defendant offered no evidence of ownership of the property and relies on the supposed weakness of the plaintiff’s case. Several questions of law have been raised on the argument and elaborately argued. It is claimed by the defendant’s counsel that the plaintiff’s remedy is limited to a suit on the replevin bond; that this is his exclusive remedy. There was no order for a return of the property on the dismissal of the replevin suit, and it is admitted that, in the absence of such order, there can be no recovery of damages for the taking or detention of the property, on a suit on the bond, so that a suit on the bond would be practically ineffective. To this proposition defendant’s counsel ingeniously reply that it must be presumed that the justice, under Sec. 22 of the Replevin Act, found that the plaintiff, pending the suit, had become entitled to the possession of the property, citing Vineyard v. Barnes, 124 Ill. 346. There would be some force in this argument, if it appeared that the justice had jurisdiction, but an examination of the affidavit in the replevin suit shows that he had not. It is a material averment in an affidavit in replevin'that the property has not been seized under any execution or attachment against the goods and chattels of the plaintiff, liable to execution or attachment. The affidavit in the replevin suit contains no such averment. The averment, apparently substituted for the required statutory averment, is that the property had not been seized under any execution or attachment against the goods and chattels of William T. Woodley, which is not only insufficient, but contrary to fact. In order to confer jurisdiction on the justice, there must be an affidavit containing all required by the statute. Evans v. Bouton, 85 Ill. 579-581. In the absence of such an affidavit, he had no jurisdiction, and could not order or issue a writ of retorno. All he could do was to dismiss the suit. Vogel v. The People, 37 Ill. App. 388. How, then, stands the case? The sheriff, the plaintiff in the case, was lawfully in possession of the goods, by virtue of his levy of the writ of attachment, and had a special property therein; the defendants, under color of legal process, issued in a case in which the justice had no jurisdiction, wrongfully obtained possession of the goods. There can be no recovery of damages for the wrongful taking or detention of the property by suit on the bond, and if defendant’s contention, that the only remedy is by suit on the bond, is correct, the plaintiff is practically without remedy. Defendant’s counsel rely on the case of Speer v. Skinner, 35 Ill. 282, in which it was decided that property distrained for rent, having been replevied by one claiming to be the general owner, the lien of the distrainer, or landlord, is lost, and he has no remedy but on the replevin bond. (Ib. 303.) It is not true, however, that the lien of an execution or writ of attachment is wholly lost if the goods levied on are wrongfully taken from the possession of the sheriff. Burkle v. Luce, 1 N. Y. R. 163, was a case similar to the present in some of its respects. These goods, previously levied on by the sheriff, were taken from him by replevin. The replevin suit abated by the death of the plaintiff, and, as in this case, the circumstances were such that the sheriff could have no remedy by suit on the bond. The court held that on the abatement of the replevin suit, the lien of the execution was revived, and" the sheriff might retake the goods. The rule that a suit on the replevin bond is the only remedy of the defendant in the replevin suit has, so far, been applied only to the case of a replevy at the suit of a tenant, of goods distrained for rent by his landlord, and I do not feel called upon to extend that rule so as to include the present case, and thus leave the plaintiff without remedy. Section 19 of the Bill of Eights, declares that “ every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive to his person, property or reputation.” If the plaintiff is entitled to recover, the measure of damages is the full value of the property. Broadwell v. Paradice, 81 Ill. 474; Atkins v. Moore, 82 Ill. 340. The defendant’s affidavit in the replevin suit states the value of the property to be $200, and as he, with the other plaintiffs in that suit, had to give bond in double the value of the property, it is not to be presumed that he fixed too high a value on it. The court finds the defendants guilty, and assesses the plaintiff’s damages at the sum of $200. The judgment of the Circuit Court is affirmed.