41 Ill. App. 464 | Ill. App. Ct. | 1891
The appellants brought this suit on the official bond of Mark Ward, a constable. From the record it appears that on June 1, 1887, the People, for the use of Hauser, obtained judgment against Werner for the sum of §138 and costs, upon which judgment an execution was issued on June 22d, which came into the hands of Mark Ward, a constable, on same day, who thereupon levied on some thirty acres of wheat in the field, which at the time was being cut and put in the shock, by Werner and others. It further appears that prior to said judgment, on the 14th day of April, 1887, Werner claimed to have sold said wheat to one Fredrick Kaemmerer, now deceased, for the sum of $200, which money is claimed to have been paid at the time, and executed and delivered a bill of sale of same. Kaemmerer having learned of said levy, on the 3d day of July gave said constable Ward notice in writing that said wheat was his property, and that he proposed to prosecute his claim to the same. Whereupon a trial of the right of property was had before a justice of the peace on the 9tli day of July, which resulted in a judgment against the claimant, who thereupon at once prayed an appeal to the Circuit Court, of which the said constable had notice, and on the 12th day of July filed his appeal bond, which was approved. The constable, notwithstanding said notice of appeal, proceeded the next day after the trial of the right of property, on July 10th, to sell said wheat. On the 25th day of July, Hauser, the owner of the judgment, settled the same with Werner for the sum of $75, and by a written receipt of that date acknowledged satisfaction of said judgment and execution in full, and withdrew all right and claim to said property, and declared therein that she would not try the right of property in said appeal, notwithstanding said agreement, said appeal case was tried in the Circuit Court, and judgment again rendered against the claimant, Kaemmerer, from which judgment he took an appeal to the Appellate Court, which court reversed the judgment below. 29 Ill. App. 576. Whereupon, after filing the final order of reversal, a trial was again had in the Circuit Court, at the February term, 1890, and judgment was rendered in favor of the claimant, Kaemmerer, that he was entitled to the possession of the wheat so levied on. The property which he was so adjudged to be entitled to having been sold by the constable, as heretofore stated, this suit was brought on his official bond to recover its value.
The defendants pleaded the general issue of non estfaotum and also filed a special plea that the property levied on was that of Werner, the execution debtor, and not the property of Kaemmerer, and therefore the constable had a legal right to levy on the same, to which plea the plaintiff interposed five replications, one of which in effect reaffirms the cause of action set out in the declaration, the fourth set up the trial of the right of property before the justice, the appeal to the Circuit Court, a settlement of the judgment and execution on the 25th of July, and that thereafter the constable took upon himself the management and control of said cause, hired counsel and defrayed all of the expenses of the litigation subsequent thereto and thereby became a party to such litigation, and final judgment thereafter having been rendered in favor of the claimant, he is thereby estopped from again litigating the title to the property in this suit. To which defendants replied that the constable in all he did, acted under the directions and in pursuance of the instructions received from the attorney of Hauser and without notice of the settlement. The fifth replication is the same in substance as the preceding one, to which no rejoinder was filed. The point is made by appellant, that by not rejoining, the defendants confessed the truth of the averments of the replication, and are now estopped from denying them. Had he not appeared and voluntarily gone to trial, as if the replication was traversed, there might have been some force in this objection; but under the authority of Seavy v. Rogers, 69 Ill. 534, by so doing he waived the formal rejoinder. Had he desired to have a rejoinder to this replication, he should have obtained a rule on defendants, and on failure to comply, obtained a judgment on that replication, if it had been good. The pleadings in this case were involved by the mispleading of defendants in their first special plea. The life of the case, as set up in the declaration, is, that the property in controversy had been lawfully adjudged to be Kaemmerer’s, on the trial as to the right of property, and that while that proceeding was pending, the constable having the property in custody, unlawfully sold it. The special plea referred to did not put the real case in issue, but raised a false issue by merely setting up, as a complete defense, that Werner, the execution debtor, was the owner of the property at the time of the levy.
The breach assigned in the declaration especially sets up and relies upon the adjudication that the property was Kaemmerer’s. It is not predicated on a mere trespass, by the sale under the execution of Kaemmerer’s property, disconnected with and regardless of the rights he acquired, as against the constable, by virtue of that- adjudication; Had the declaration been so framed, then the plea would have been technically good, leaving the question of estoppel, as to defendant’s right to set up such a defense, open to proof. But being framed on the other theory, the plea, being allowed to stand, drove the plaintiff to the absurdity in pleading of again setting up substantially the averments of his declaration, as a replication to the plea, in order to maintain his action, which was based upon the same state of facts, although there was nothing in the plea that required a new assignment. Doubtless the plea was filed with the view that the former adjudication as to the right of property was not binding on the constable. This case was tried on that theory in the court below and it is urged in this court.
It will be observed that the statute as to the trial of the right of property is very different from what it was formerly, when the decisions were rendered in the cases - of Rowe v. Bowen, 28 Ill. 116; Foltz v. Stevens, 54 Ill. 180.
Then the trial was before the officer, the result of which was merely advisory as to him, as was held in the Eowe case. The court was driven to this conclusion in order to uphold the law as it then was, for under the Constitution no judicial power could be vested in such an officer. In that case, however, Mr. Justice Catón, in a dissenting opinion, makes the logical point, the effect of which is, that while the proceeding before the sheriff was not judicial, yet the statute, by giving the right of appeal to the Circuit Court, the parties who availed themselves of it were thereby brought before a tribunal that had the power to hear and determine causes, and therefore its judgment would be Tes judicata as to all parties and privies.
Under the statute as it is now (Sec. 101, Chap. 79), if judgment is rendered in favor of the claimant, the property levied upon shall he released. Formerly the statute did not so provide, but the officer might sell at his peril of the result of a trial.in a suit by the claimant against him. Under Sec. 102, Ibid., the defeated party in such a trial may appeal, provided the same is prayed on the day of entering the judgment. There was no such proviso in the old statute. This proviso is doubtless mandatory and the prayer on that day a prerequisite to the right, at least, as against a sale before the bond is filed, to perfect the appeal thereafter. The purpose of this requirement evidently was that the officer might know whether or not he should proceed to sell, if the time for sale had been fixed to take place within the five days allowed for appeal, or proceed to'advertise for sale if it had not already been done.
In this case, the record shows that the claimant prayed an appeal on the same day of the entry of judgment, as appears by the transcript of the judgment of the justice, from the following entry: “ July 9, 1887, (the date of judgment.) attorney for F. Kaemmerer prays an appeal,” which was perfected as the transcript shows: “ J uly 12, 1887, appeal bond executed and approved.” This trial before the justice was a judicial proceeding and therefore binding upon the judgment creditor and the officer levying the execution. The prayer for appeal by the claimant within the time provided by law and the subsequent perfection of the appeal, stayed the hand of the officer until the right of property could be legally determined in another court. Sec. 103, Ibid., expressly provides that “ In case of an appeal, the constable shall retain the property ” unless bond is given, etc. The prayer for an appeal on the same day of the entering of the judgment is an appeal within the meaning of this provision, if the bond is thereafter filed and approved within the five days allowed by law.
This legal right could not be taken from the claimant by selling the property on the next day after the judgment was rendered. That would be the effect of so holding, for thereby the claimant would receive no benefit from his appeal if his claim was sustained, as he would have to relitigate the whole case again in order to obtain the value of his property. If that was the case, the only prudent course would ,be to dismiss his case and sue the officer or execution" creditor and thus reach a result that would be final in one proceeding. It follows from these conclusions, that the special plea set up no defense to the cause of action as averred in the declaration, and that the court erred in excluding from the jury the record evidence, to show the prosecution of the trial of the right of property to a final determination in favor of the claimant, which, if shown, would be conclusive upon appellee. The judgment is therefore reversed and the cause remanded.
lieversed and remanded.
