124 Ill. 346 | Ill. | 1888
delivered the opinion of the Court:
The question is presented by the rulings below, whether, ■under a replevin bond, conditioned that “the plaintiffs shall prosecute their suit to effect, and without delay, and make return of the said property, if return thereof shall be awarded, ” "there can be a recovery of the value of the property replevied, without proof of a judgment awarding its return. The principle, that the undertaking of a surety is construed strictly, :and can not be varied or enlarged by judicial construction, (Mix v. Singleton, 86 Ill. 194,) would seem to require that a negative answer be given, unless the duty to return the prop■erty necessarily results from the failure to prosecute the suit.It would seem quite clear that that can not be true, because it is provided by section 22, chapter 119, of the Revised Statutes of 1874, that “if the plaintiff, in an action of replevin, .fails to prosecute his suit with effect, * * * judgment shall be given for a return of the property, and damages for the use ■thereof from the time it was taken until a return thereof shall be made, unless the plaintiff shall in the meantime have be■come entitled to' the possession of the property, when judgment may be given against him for costs, and such damages as the -defendant shall have sustained.”
The right of the defendant to the possession and the return of the property is finally determined by the judgment. (Warner v. Matthews, 18 Ill. 83.) And since the record here in evidence awarded no return, we must assume that it was made-to appear to the court that the plaintiff in the suit had become-entitled to the possession of the property, for, in the absence-of anything showing to the contrary, it is always to be assumed that the judgment rendered by the court was the right judgment to be rendered in the case. St. Louis and Southeastern Railway Co. v. Wheelis, 72 Ill. 538; Camp v. Small, 44 id. 37 Morton v. People, 47 id. 468.
The conditions to prosecute the suit to effect, and to make return of the property, are distinct, and the condition is broken and the bond forfeited by a failure in either, (Perrean v. Bevans, 5 Barn. & Cress. 284, Brown v. Parker, 5 Blackf. 291,) and so, evidence of a breach of the former condition can not therefore be held sufficient proof of a breach of the latter condition. Thomas v. Irwin, 90 Ind. 557; Way v. Barnard, 36 Vt. 370; Collamer v. Page, 35 id. 392; Clark v. Norton, 6 Minn. 419; Pettygrove v. Hoyt, 2 Fairfield, (11 Me.) 66; Badlaw v. Tucker, 1 Pick. 284; Kimmel v. Kent, 2 Watts, 432; Ladd v. Prentice, 14 Conn. 116; Cooper v. Brown, 7 Dana, (Ky.) 333; Clary v. Roland, 24 Cal. 148; Gallarati v. Orser, 24 N. Y. 324.
Counsel for appellee say that the record of dismissal “shows on its face that it is no legal judgment at all,”—that “the clerk, in writing up his record, has simply copied the judge’s minutes.” If this be true it can hardly help them. If they seek a recovery of the value of the property, the onus is on appellee to show a judgment awarding its return.
The judgments of the circuit and Appellate courts are reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion. Appellant’s costs in the Appellate Court will be taxed by the clerk of this court, on certificate of clerk of the Appellate Court.
Judgment reversed.