Hanson v. Egan

Mr. Presiding Justice McSurely delivered the opinion of the court. By this appeal plaintiffs seek a reversal of a judgment against them in an action of replevin, heard by the court. The record shows that defendant as bailiff of the municipal court of Chicago was in possession of the property described in the replevin writ (a number of books) by virtue of a writ of execution, and that he. was holding said property for the payment of a judgment of $626.17 rendered in the municipal court of Chicago; that plaintiffs took said property from defendant by virtue of a writ of replevin issued on their affidavit. This replevin writ was issued October 26, 1921, and was made returnable on the third Monday of November, which was the first day of the next term of the circuit court. No declaration was filed ten days prior to this term. The following term of the circuit court began on the third Monday of December. No declaration was filed ten days prior to this term and, so far as the record shows, no declaration was ever filed. Where a declaration is not filed ten days before the term at which - summons is made returnable, the case shall be continued, and if the declaration “shall not be filed ten days before the second term of the court, the defendant shall be entitled to a judgment as in case of a nonsuit.” Practice Act, ch. 110, sec. 32 [Cahill’s Ill. St. ch. 110, ¶ 32]. Defendant filed his general appearance November 7. February 25, 1922, on motion of the attorneys for defendant, the court entered a finding that no declaration had been filed by the plaintiffs either to the November or December term; that at the time the writ was served on the defendant as bailiff of the municipal court he was in rightful and lawful possession of the property by virtue of an execution on a judgment in that court for $626.17 and costs. It was ordered that unless payment was made, as hereinafter provided, the defendant should have and recover from the plaintiffs the replevined property and his damages with costs and charges; that unless plaintiffs, within ten days, should pay or cause to be paid to the clerk for the use of the defendant $635.17 with interest, a writ of retorno habendo should issue for the return of the property replevined. From this plaintiffs prayed an appeal, which was allowed upon filing a bond within thirty days and a bill of exceptions within sixty days. Such a judgment was authorized by section 22 of the Replevin Act, ch. 119, Illinois Statute [Cahill’s Ill. St. ch. 119, ¶ 22], which is as follows: “If the plaintiff in an action of replevin fails to prosecute his suit with effect, or suffers a nonsuit or discontinuance, * * * judgment shall be given for a return of the property and damages for the use thereof * * *; or if the property was held for the payment of any money, the judgment may be in the alternative that the plaintiff pay the amount for which the same was rightfully held, with proper damages, within a given time, or make return of the property.” A similar judgment has been approved in MacLachlan v. Pease, 171 Ill. 527. Section 17 of the Replevin Act [Cahill’s Ill. St. ch. 119, ¶ 17] provides that “declarations in replevin may be filed in like manner as other declarations,” and it is claimed that this is optional. It has been held to the contrary in Beamesderfer v. Cermak, 203 Ill. App. 294; Smith v. Kennett, 94 Ill. App. 331. It is suggested that the trial court heard no evidence and there was no trial upon the merits. The findings imply that there was evidence before the court. No bill of exceptions was filed and we will therefore presume that there was sufficient evidence to support the finding and the judgment. We find attached to the record filed in this court, after the certificate of the clerk, a paper which the abstract refers to as a bill of exceptions. This paper is not a part of the record and cannot be considered by ns. The record justified the judgment and it is affirmed. Affirmed. Hatchett, J., concurs.