| Ill. | Apr 15, 1861
The points made by the affidavit, question, first, the propriety of allowing Mix to be sworn as a witness, as he had signed a bond for costs in the cause, and also was the security on the replevin bond. In answer to this, it is sufficient to say, these reasons for objecting to him as a witness were not urged in the court below. The bill of exceptions simply states Mix was objected to when called as a witness, but the grounds of objection were not stated. They cannot be stated in this court for the first time. By alleging the grounds of objection in the court below, opportunity would be afforded the party to substitute other security. It is too late now to make it.
That the court erred in admitting the chattel mortgage in evidence for the plaintiffs, because this court, in a former case, had declared it void, as against creditors, or third parties, is not so clear. The mortgage was valid as between the parties to it, and when offered as evidence the appellant was not shown to be a creditor, and entitled, by virtue of that position, to interfere with the property conveyed by the mortgage, or question the conveyance.
The third point made is, that the court erred in trying the cause while “ our demurrer was undisposed of.” There is much pleading shown in the record—it is quite voluminous. The defendant put in three pleas: first, non detinet; second, a judgment and execution in favor of Thomas A. Cummings and others, and a levy on the goods in question by one Regan, deputy marshal; and third, property in one Sexton. The plaintiffs joined issue on the first; replied to the second that the goods were their property, and not the property of Sexton; and the same to the third plea ; in both which issues were tendered to the countrv, and joined by the usual similiter, though not signed by the defendant’s attorney. Afterwards, during the term, the court granted leave to plaintiffs to reply double to the defendant’s pleas, and, as the record recites, “ thereupon issue being joined, the jurors of a jury came,” etc., who returned their verdict. A motion was made for a new trial, and overruled.
At the October term, 1857, an order was made placing the cause upon the docket on the motion of defendant’s attorney, who produced the order of this court remanding it, and the cause was continued. At the June term, 1858, the plaintiffs obtained leave to file a new replication, and under this leave filed a replication to the second plea, traversing the allegation that Regan was a deputy marshal, concluding to the country, and the similiter added; and, also, another replication traversing the allegation of the judgment as set out in that plea, concluding to the country, with the similiter added; and a replication, traversing the allegation of the execution, as set out in the plea, concluding to the country, with the similiter added.
At the October term, 1858, the defendant’s counsel filed a demurrer to these several replications, and at a subsequent day of the term, the record states, “ now comes on to be heard the plaintiffs’ replications to the defendant’s pleas herein, and after argument of counsel, and the court being fully advised in the premises, it is ordered that the said replications be overruled ; and now to try the issue herein, came the jurors of a jury,” etc. A verdict was rendered for the plaintiffs, and a motion for a new trial overruled, and bill of exceptions filed.
The clerk has, evidently, made up an incorrect record of the proceedings. It was the defendant’s demurrer to the plaintiffs’ replications which the court heard and overruled, probably for the reason that a demurrer could not be interposed after an issue of fact was made up. The demurrer was too late, and the court might well omit to notice it. But if it be not so, the party cannot now complain, as the record shows no joinder in demurrer, and that- the defendant went into the trial voluntarily, without calling up, or noticing in any manner, his demurrer. It is too late now to urge this as ground of reversal. Parkers v. Palmer, 22 Ill. 489" date_filed="1859-04-15" court="Ill." case_name="Parker v. Palmer">22 Ill. 489.
The fourth point made is not sustained by the record. Issues of fact appear to be made up on all the pleas, by adding the similiter without objection, which is usually done by the attorney tendering the issue, and is not always signed by counsel. The similiter may be put to a plea at any stage, by any party ; and it is not error to proceed to trial without it. Stumps v. Kelly, 22 Ill. 140" date_filed="1859-04-15" court="Ill." case_name="Stumps v. Kelley">22 Ill. 140; Walker v. Armour, ib. 648.
The main point in the case is the fifth, which is, that the court erred in refusing to admit the execution and levy.
The facts are, that the execution, levy and return were all offered together, unaccompanied by any proof that the person making the levy and return was an officer authorized to make them. Besides, the execution, as set out in the bill of exceptions, wants a seal, and is therefore void, and of no effect.
These papers being properly, as we conceive, rejected by the court, the defendant’s case was cut up by the roots. Without this evidence, the defendant had no right to raise the question of fraud, or any other question affecting the right of possession of the party, from whom an unauthorized individual forcibly and without authority took the goods. There was no proof that the deputy marshal was such officer, either de jure or de facto, and not being such, the defendant could not justify under his acts or orders.
We see no error in the instructions, and must affirm the judgment.
Judgment affirmed.