Bennet v. Gilbert

Mr. Presiding Justice Adams delivered the opinion of the court. Appellee’s counsel preserved a bill of exceptions to the action of the court in overruling the motion to strike the plea of the general issue from the files and in overruling the demurrer to the special plea, and has assigned cross-errors as to these rulings. In support of the motion to strike from the files the plea of the general issue, counsel urge that the special plea being puis darein continuance, or in the nature of a plea puis darein continuance, was a waiver of the other plea; citing Mount v. Scholes, 120 Ill. 394; City of East St. Louis v. Renshaw, 153 Ib. 491; Angus v. C., T. & S. Bank, 170 Ib. 298; Miller v. McCormick H. M. Co., 34 Ill. App. 571, and Harding v. Horton, 79 Ib. 123. In each óf these cases the plea purported to be to the whole cause of action. In such case the general rule, that a plea puis darein continuance in bar waives all previous pleas, applies. In the present case there are two parties beneficially interested, as appears on the face of the declaration : Davis, the execution creditor, and Morris & Harris, the judgment debtors and general owners of the property in question; and the special plea is limited to the interest of Davis. In such case we do not understand that the general rule is applicable. Morris v. Cook, 19 Wend. 699, was ejectment. The defendant pleaded the general issue to the whole declaration. Subsequent^ he pleaded puis darien continuance as to three-tenths of an acre of the land in controversy, title acquired by him pending the suit. In respect to the objection that the special plea was a waiver of the plea of the general issue, the court say: “ It is supposed by the plaintiff’s counsel that a plea puis, etc., is a waiver of all previous pleas, whether it be interposed to the whole or only part of the plaintiff’s action. The rule is, perhaps, universal, where the plea goes to the whole subject of the declaration. But where it goes to one of several counts, or to any particular part of an entire claim, I can see no reason for making it- a waiver beyond what it professes to answer. In Rayner v. Dyett, 2 Wend. 300, a plea puis of a discharge of the body from imprisonment was held to be no waiver of the previous general pleas in bar. Why was this so? Plainly because the plea puis was partial. It affected the remedy merely. It acted as a waiver no further than it was intended as an answer.” We think the reasoning of the court, in the case cited, unanswerable. The motion to strike the general issue from the files was properly overruled. The appellee, by replying issuably to appellant’s special plea, waived his demurrer to the plea. The rule that pleading issuably to a declaration or other pleading is a waiver of a prior demurrer to such declaration or pleading, is too familiar to require citation of authorities. But counsel contend that pleas puis, etc., are an exception to the rule. Their argument is that such pleas partake of the nature of pleas in abatement, and must be framed with exactness, citing Mount v. Scholes, 120 Ill. 394, and other cases; and that the rule in regard to pleas in abatement is, that on a judgment of respondeat ouster, if the defendant subsequently pleads in bar, the plea in bar is not a waiver of the prior, plea in abatement, citing Delahay v. Clement,3 Scam. 200,and other cases. The argument is sophistical. It assumes that because a plea puis, etc., is required to be framed with great particularity, as is a plea in abatement, therefore such plea' must be treated as a plea in abatement for all purposes; and also assumes that the effect of pleading over, after judgment of respondeat ouster on a plea of abatement, is the same as if a defendant voluntarily pleaded. A plea puis, etc., may be either in abatement or in bar. 1 Chitty on PL, 5th Am. Ed. 571. The plea in question is a plea in bar to the further maintenance of the action, precisely as was the plea in Morris v. Cook, supra. In Delahay v. Clement, supra, cited by appellee’s counsel, the court distinguishes between the effect of pleading over, after a judgment of respondeat ouster, and pleading after demurrer overruled. In that case the court had held, on the original hearing, that the filing of the plea in bar was a waiver of the plea in abatement. The opinion-was on a rehearing, and the court says: “ This court was doubtless led into this error by supposing that the defendant below stood upon the same ground as" a party who, after his plea had been held bad on demurrer, asks and obtains leave of the court- to amend his plea. In this case the plea is considered as abandoned. So, if a party demurs to a pleadiilg and the demurrer is overruled, and he obtains leave to withdraw his demurrer and plead or reply, the demurrer is deemed to be waived. In both of these cases it is considered the act of the party that produces the result. He admits that he was wrong, and he should not be permitted, subsequently, to come into court and insist that he was right. In the case at bar, however, there is no such admission.” If one pleads to a pleading, after demurring thereto, without formal leave of court, the effect is the same. Ill. Gen. R. R. Co. v. Parks, 88 Ill. 373. Such being the law, the imperfection, if any, of the special plea, can not be inquired into here. The sole issue formed by the special plea and the replication thereto, was whether Davis executed the release pleaded. Execution consists of the signing, sealing and delivery. Appellant produced and put in evidence the release; it is signed and sealed by Davis, and its production by appellant is prima facie evidence of its delivery. Appellee’s counsel, in their printed argument, admit that “ Davis executed a release of all his claims against appellant.” The issue being decided in favor of appellant, there could be no recovery by the plaintiff for damages merely on account of his, Davis’, beneficial interest in the action. The release was not executed by the partners, Morris and Harris. Eose Morris did not execute it, and D. Morris, who signed it, is a mere stranger to the subject-matter of the release. 11 The sheriff, as the special owner of the property levied on, by virtue of an execution in his hands, is entitled, as a general rule, to recover the full value of the property replevied, and, as he represents not only the interest of the execution creditors, but also that of the general owner of the property, if the proceeds of the judgment exceed the amount due to the execution creditor, it is the sheriff’s duty to hold such excess in trust for, or pay it to the general owner, or to whomsoever may appear to be entitled thereto. Broadwell v. Paradice, 81 Ill. 474; Atkins v. Moore, 82 Ib. 240; Wheat v. Bower, 42 Ill. App. 600. Therefore, notwithstanding the issue as to the execution of the release was proved in favor of appellant, there remained the question of the value pf the property replevied. It was admitted that $900 was the value of the property replevied in one of the replevin suits. The other replevin suit was for ten mink coats, and the proof was that appellant sold the material in the coats to Morris & Harris for $362.50, and that they made the coats; and there was proof tending to show that the coats were worth double the value of the material, or $725, which would make the total value $1,625. David Tigner, who, as appellant’s agent, sold the replevied goods to Morris & Harris, testified that they were worth between $1,000 and $1,200. But this evidence is of little value, inasmuch as it was admitted by the parties on the trial that the goods replevied in one suit were worth $900, and the material in the mink coats which were replevied in the other suit was worth $362.50, to which must be added the value of the coats less the cost of material. Davis having released all claim against Bennet on account of his beneficial interest in the property replevied, for the consideration of $500 paid to him by Bennet, ceased to have any interest in the damages which might be recovered in the suit. The evidence shows that appellant converted the property to his own use. Hnder these circumstances the damages recoverable are the value of the property replevied, with interest on such value, less $500, paid by Bennet to Davis, and with which Bennet should be credited. The first replevin suit was brought September 22d, and the second September 27, 1892. The proof shows the value of the replevied goods to have been $1,625. Interest on that amount from September 27, 1892, till April 5, 1900, the date of the judgment, at the rate of five per cent per annum, is $616.14, making the total of principal and interest $2,241.14, from which deducting $500, leaves $1,741.14, the amount for which judgment might have been rendered. Excluding interest, the value of the property, less $500, is $1,125. The amount of the judgment appealed from is $1,116.07. Appellee’s counsel claim that S. Levy & Co. are entitled to share in the proceeds of the judgment, by virtue of the instrument of date October 24,1895, executed by Davis to S. Levy & Co., and the agreement of date May 26, 1897, between Davis and Levy & Co. But we do not deem it necessary or expedient to pass on that question. The decision of the cause can not, in any way, affect any right which S. Levy & Co. may have, as they are not parties to the cause, and nothing said in this opinion must be understood as prejudicial to any right which they may have. If, as claimed by appellee’s counsel, they have an interest in the proceeds of the judgment, that interest may be protected by proper proceedings in the proper forum. We have only to do with judgment appealed from. Appellant’s counsel objected to the introduction in evidence of the execution in Davis v. Morris & Harris, on the ground that the balance due on it is misstated in the declaration. The objection is not applicable to the second count of the declaration, and was properly overruled. Appellant’s counsel also object to the refusal of the court to hold as law certain propositions submitted to the court on behalf of appellant. The first proposition was properly refused, because there is no evidence that Davis knew of the purchase of the goods from appellant. The second and fifth propositions are to the effect that no recovery could be had for the benefit of S. Levy & Co. We think they were properly refused. The third proposition was properly refused, because not applicable to the evidence. The refusal of the fourth was not prejudicial to appellant, as evidenced by the result. So far as appellant is concerned, he has no good ground to complain that substantial justice has not been done. The contention that the sheriff’s remedy is limited to an action or actions on the replevin bond, was not made in any way in the trial court, and therefore can not be considered here. ' The judgment will be affirmed.