Connor v. Greenberg

Mr. Presiding Justice Gridley delivered the opinion of the court. First. It is contended by counsel for defendant that because plaintiff, in her replication to defendant’s plea of justification to the declaration, failed to “new assign, ’ ’ no recovery can be had by plaintiff. The statement as to defendant’s plea being filed to the declaration is not accurate. The declaration contained four counts to which defendant pleaded the general issue, and his special plea of justification was filed only to the first count. After due consideration we do not think that counsel’s point is well taken. The first count of plaintiff’s declaration charged, in substance, that defendant, with force and arms, etc., broke and entered plaintiff’s dwelling house, forced and broke open the outer doors of said house, and therein seized and carried away over 100 articles of household furniture, the property of plaintiff, and converted the same to his own use, whereby she suffered damages as alleged. Defendant’s plea of justification to this count alleged, in substance, that, by virtue of an execution for $133.20, issued by a justice of the peace to him as a constable, he as such constable peaceably and quietly entered plaintiff’s dwelling house, “the outer door thereof being then open,” and seized and took away under said execution 9 articles of household furniture mentioned, belonging to plaintiff, and subsequently sold the same, etc. The fact that defendant as a constable was armed with a writ of fieri facias would not justify him, for the purpose of executing such a writ, in breaking the outer door of plaintiff’s dwelling house; if, however, he found such outer door open, and he gained a peacable entry into the house, and he found that an inner door was closed so that he could not seize any of plaintiff’s goods, then he could have demanded of plaintiff that said inner door be opened, and upon her refusal he could have opened that door and seized a sufficient amount of plaintiff’s goods to satisfy the amount of said writ and costs. (Snydacker v. Brosse, 51 Ill. 357, 361.) If he broke the outer door, and thereby gained an entrance into plaintiff’s house, he became a trespasser ab initio, and liable not only for the property taken by him but also for any damage to plaintiff which was the immediate result of his acts. (Snydacker v. Brosse, supra; Greenberg v. Connor, 189 Ill. App. 419.) The averment in defendant’s plea (viz., the outer door of plaintiff’s house being open at the time he entered) was a material one, as that fact, if it was a fact, was a condition precedent to his right to enter plaintiff’s house. (Kerbey v. Denby, 1 Meeson & W. Rep. 336.) To this plea the plaintiff filed a replication, in which she admitted that it was true as defendant had stated in his plea that he had the writ, but further alleged that nevertheless the defendant, at the time when, etc., “of his own wrong, and without the residue of the cause in that plea alleged, committed the trespasses in said declaration mentioned, in manner and form as the plaintiff has hereinabove complained against the defendant.” In other words, she alleged that notwithstanding defendant had the writ mentioned, nevertheless he committed the trespasses as alleged in her declaration, in the first count of which there was contained the distinct allegation that he forced and broke open the outer doors of her house. We think it was unnecessary for her to again specifically charge in the replication that defendant broke the outer doors. (Kerbey v. Denby, supra.) And we think that the issue of fact as to whether defendant broke the outer doors was sufficiently presented. “In trespass * * * the replication containing a general denial of the whole plea sometimes occurs, and is termed a replication de injuria sua propria absque tali causa, * * * or, if a part of the plea be admitted, then it is termed de injuria absque residuo causa, thereby denying all but the admitted fact or facts. This replication tenders issue upon and compels the defendant to prove every material allegation in his plea.” (1 Chitty on Pl., 16th Am. Ed., star p. 632-3.) “If in any case the defendant justified under the warrant of a justice of the peace, * * * or by his command, the replication must have been special, and admit or protest the warrant or commandment, and reply de injuria absque residuo causa, or take issue simply on the warrant or commandment.” (Id., star p. 636.) “There are some replications which rather partake of the nature of new assignments than are properly and strictly so. As where the defendant has abused an authority or license which the law gives him, by which he became a trespasser ab initio. In an action brought for a trespass thus committed, where the defendant pleads the license or authority, the plaintiff may reply the abuse. Such a replication it will be observed differs from a new assignment, because it does not operate in any manner as a waiver or abandonment of the trespass attempted to be justified, but states matter in confession and avoidance of the justification.” (Id. p. 665.) Furthermore, defendant did not demur to plaintiff’s replication. “Where de injuria is improperly replied, the defendant may demur specially, but the defect will be aided after verdict.” (Id. p. 639.) Second. It is also contended that the trial court erred in allowing plaintiff to testify that she had no knowledge or recollection of any summons ever having been served upon her in the action brought against her by Clark & Doran in the justice court. We do not think, even if the court erred in his ruling, that defendant was so prejudiced thereby as to warrant a reversal, in view of the instructions subsequently given to the jury. Several of plaintiff’s instructions were predicated upon the assumption that defendant had a valid writ of execution. Of the instructions given on behalf of the defendant the second told the jury that the writ of execution introduced in evidence was valid and authorized defendant, as a constable, to levy upon and take goods of plaintiff to satisfy the writ; and the eighth, that if the jury believed from the evidence that the plaintiff was not served with a summons in the Clark & Doran case, still the writ of execution in defendant’s hands would be a protection to him in levying upon plaintiff’s property although as a matter of fact there was no service upon her. Third. It is further contended that the trial court erred in giving three instructions offered by plaintiff and in modifying an instruction offered by defendant. Plaintiff’s seventh given instruction is as follows: “The court instructs the jury as a matter of law that an officer in levying an execution within a dwelling house must make a peaceable entry and has no right tó break open an outer door or other outside protection of such dwelling house, and if the jury believe from the evidence in this case that the defendant broke open or caused to be broken open the outer door or other outside protection of the plaintiff’s dwelling house in levying- the writ or writs of execution in question, then all acts thereafter done pursuant to said wrongful entry, if the jury believe from the evidence there was such wrongful entry under said writ or writs by the defendant or by his direction, were unlawful. What constituted the outer door or other outside protection of the plaintiff’s dwelling house is a question of fact for the jury. ’ ’ Counsel for defendant contend that this instruction was prejudicial because (1) it assumes that the boarding house kept by plaintiff was a “dwelling house,” and (2) because it left to the jury to decide, under the evidence, that an inner door might be an outer door, and therefore was misleading. The evidence clearly shows that the house in question was plaintiff’s dwelling house. She resided therein with her family. We do not think that the mere fact that she rented certain rooms to others and also kept boarders made it any less a dwelling house. (State v. Leedy, 95 Mo. 76, 78.) The term “dwelling house” is defined in Webster’s Dictionary as “a house intended to be occupied as a residence, in distinction from a store, office, or other building;” and in Bouvier’s Law Dictionary as “a house usually occupied by the person there residing, and his family; the apartment, building, or cluster of buildings in which a man with his family resides.” And it was not disputed on the trial that plaintiff occupied the house as her dwelling house, and defendant in his plea of justification stated that the articles which he seized and took in execution were in “said dwelling house.” The second objection to the instruction evidently has reference to the last sentence thereof. As we understand it the argument is, inasmuch as the evidence was conflicting on the question whether defendant broke in the double doors entering into the vestibule, and as there was no dispute as to the breaking in of the double doors leading from the vestibule into the hall, that by the instruction the jury might have thought that said last mentioned doors were outer doors, and that the court should have told the jury by an appropriate instruction which of the two sets of doors were the outer and which the inner, instead of submitting this question to the jury to decide. We do not think that the defendant was prejudiced by the instruction. In Snydacker v. Brosse, 51 Ill. 357, 359, it is said: “It is a uniformly recognized rule of the common law, that no officer has the legal authority to break an outer door, or other outside protection, to an individual’s house, for the purpose of executing civil process.” In our opinion, under the facts shown, the double doors leading from the vestibule into the hall are to be considered in law as much the 1 ‘ outer door or other outside protection” to plaintiff’s house as the other outer doors leading into the vestibule. An entrance into the inside of plaintiff’s house could not be effected by reaching the vestibule which is outside of the doors opening into the main hall of the house. There is therefore no basis for counsel’s objection to the instruction. Complaint is made of the giving qf the tenth instruction offered by plaintiff. By it the jury were told that if they found the issues for the plaintiff, and that if they further found from the evidence that plaintiff had an established business which was injured or destroyed as the proximate result of the acts of defendant in taking plaintiff’s goods, they might assess such damages, if any, proximately accruing to plaintiff from such loss of business. Counsel’s argument against the instruction is based on the assumption that he lawfully entered plaintiff’s house and made a lawful levy on plaintiff’s goods. Under the facts shown we do not think there was error in the giving of the instruction. (Snydacker v. Brosse, 51 Ill. 357, 361.) It is also contended that the giving of the fifth instruction offered by plaintiff tended to mislead the jury. As the portion complained of is predicated upon the assumption that defendant made a peaceable entry into plaintiff’s house, and the jury found in one of their special findings that he broke the outer door thereof, we do not think that the defendant could have been prejudiced by the giving of the instruction. Furthermore, we think the jury were properly instructed as to the measure of damages for property unlawfully taken. Complaint is also made of the fact that the court refused to give defendant’s thirteenth instruction, as offered, but modified it by inserting therein certain words and giving' it to the jury as modified. We do not think that the defendant was at all prejudiced by the' action of the court. Fourth. It is further contended that the verdict is against the weight of the evidence. We do not think so. The above are all the points urged and argued in the brief of defendant’s counsel as grounds for a reversal of the judgment. Finding mo reversible error in the record the judgment of the Circuit Court is affirmed. Affirmed.