191 Ill. App. 152 | Ill. App. Ct. | 1915
delivered the opinion of the court.
The facts set forth in the prefixed statement—facts alleged in the pleadings and admitted by the demurrer—are such that no argument, however ingenious and plausible, can conceal or controvert the truth of the proposition that what the Superior Court of Cook county was-asked to do in the case at bar was not only to overrule the intent of the judgment and orders of a court of co-ordinate jurisdiction, but even to use the action of that court—contrary to its clear purpose— as a pretext for effecting a result which the Circuit Court supposed it had negatived. It can hardly be expected that this court will be astute to find reasons to compel the Superior Court to do so.
The administrator of the Place estate had a dispute with Anna B. Gilmore regarding the possession of and, presumably, the title to certain certificates of stock in an incorporated company, covering about 400,000 shares. He submitted the dispute to the Circuit Court of Cook county, bringing Anna B. Gilmore into that tribunal in a suit began in replevin. There was a trial; a jury found expressly that “the right of possession of the property in question” was in the administrator of the Place estate, and assessed as damages “for detention of said property” the sum of one cent.
The Replevin statute says: “If judgment is given for the plaintiff in replevin, he shall recover damages for the detention of the property while the same was wrongfully detained by the defendant,”—a provision which sufficiently explains and accounts for the form of the verdict and the nominal damages.
On this verdict the Circuit Court entered a judgment. It was that “the plaintiff” (that is, the administrator aforesaid) “do have and retain the property replevied herein by virtue of the writ of replevin issued in said cause. ’ ’ There is also a provision that the plaintiff have and recover his damages “of one cent in form as aforesaid by the jury assessed.”
The intention of both judge and jury in the Circuit Court to decide the dispute concerning the right to possession of the stock certificates at the time of the verdict and judgment, as well as at the time the suit was brought, is just as plain as though the property in question at the time had been in the possession of the sheriff under the replevin writ, or in the possession of the plaintiff to whom the sheriff had delivered it. It is hardly rendered plainer even by the order of the court at the time of the judgment from which an appeal was prayed and allowed, that the certificates should, until the further order of the court, be impounded with its clerk.
But the appellant in the case at bar says the effect of these actions of the Circuit Court was to make her right to the certificates absolute, requiring only application to a court of co-ordinate jurisdiction to effectually vindicate it. Her argument is: “Because I refused to deliver the certificates to the Sheriff, (although I did thereafter to the Clerk) the administrator of Place must be conclusively presumed to have abandoned his replevin suit and by going on with the suit at all to have elected to proceed in trover,—inasmuch as he joined trover counts with the replevin ones in his declaration and the statute says that if the property is not found by or delivered to the Sheriff, the plaintiff may declare in trover, and if he recover therein shall he entitled to judgment for the value of his property. Then, since the plaintiff elected to proceed in trover, the verdict, contrary to its express words, must be considered a verdict in trover and the damages for the detention be considered an assessment of the value of the property, everything in the verdict to the contrary of this hypothesis to be considered a superfluity or an irregularity and negligible.
The judgment on this verdict is also to be considered as a judgment in trover, changing the title and vesting it in me, although said judgment is plainly in its form a judgment in replevin, just as the verdict was a verdict in replevin, and although the money part of it was purely nominal and although it was accompanied by an order impounding the certificates (which had appeared on the trial) with an officer of the Court.
That the end may crown the work, it is proposed to vindicate the legal right that the Circuit Court has thus, contrary to its undeniable intention, given to Anna B. Gilmore, by securing a judgment of the Superior Court in her favor in an action of replevin against an officer of the Circuit Court, and, as he has refused, to deliver up the certificates, by mulcting him in their value (for the théory which Gilmore invokes in Devine v. Gilmore must be good in Gilmore v. Bidwell) which we may suppose will be put at a much higher figure than one cent in the estimates of the plaintiff in Gilmore v. Bidwell.
The result aimed at is not agreeable to our sense of justice and we think the reasoning sophistical.
We are not prepared to hold that the plaintiff in Devine, Adm’r v. Gilmore “elected to proceed in trover” or that the verdict or judgment was in trover; and we are not of the opinion that the opinion in the criminal contempt case of Yott v. People, 91 Ill. 11, nor the decision in McGavock v. Chamberlain, 20 Ill. 219, that the plaintiff could not at the same time recover the value of some horses, the subject of a suit prosecuted in trover, and also damages for their detention, compels us to do so. The incidental language in the opinions in Reno v. Woodyatt, 81 Ill. App. 553, and Rowersock v. Beers, 82 Ill. App. 396, would not of course be binding or authoritative for us even were it more important.
The action in the Superior Court is an attempt not, as counsel argues, to render effective the judgment of a co-ordinate court, but to set it aside and overrule it. The only proper way to attack that judgment is by an appeal from a writ of error to the court which entered it. The Superior Court, on this ground if no other, was right in sustaining the demurrer to the plaintiff’s replication in the case at bar and giving judgment for the defendant.
But there are other reasons why that action was right. We do not purpose to discuss-the arguments made in the matter of the orders of Judge Tuthill under which the certificates are held by the clerk of the Circuit Court. We think that he received them and holds them in his official capacity under the order of the Circuit Court. Therefore replevin will not lie against him for them. If his holding is essentially wrongful, it should be ended by an application to the court which ordered it, or to some higher court, not to a co-ordinate one. As the Supreme Court of Kansas said in Karr v. Stahl, 75 Kan. 387: “Ample remedy has been given for testing the validity of any law, process or judgment without recourse to an action of replevin.”
The judgment of the Superior Court is affirmed.
Affirmed.