Hanchett v. Williams

24 Ill. App. 56, 1887 Ill. App. LEXIS 468

• Court: Appellate Court of Illinois
• Decided: November 23, 1887
• Status: Published

Opinion

Moran, P. J.

The court found that the four barrels or casks of wine belonging to the plaintiff were in the store of Howe, and levied upon by the Sheriff as the goods of Howe, and were sold by the Sheriff and the proceeds paid over on the execution. This finding is plainly supported by the evidence but it is contended by appellant’s counsel that there could be no recovery against the Sheriff in trover because there was no demand made upon him by appellee for the goods.

Demand and refusal are only evidence of conversion in an action of trover, and if it is shown by the evidence that the goods for which recovery is sought were sold or otherwise disposed of by the person who had the possession of them, then the conversion is proven and it is unnecessary to prove a demand. Howitt v. Estelle, 92 Ill. 218; Kime v. Dale, 14 Ill. App. 308. An officer who levies on the goods of one person under an execution against another and sells them or loses them, is liable in an action of trover, and no demand is necessary, as proof of the sale or loss makes out the conversion. Duncan v. Stone, 45 Vt. 118; Robinson v. McDonald, 2 Geo. 116; Burgin v. Burgin, 1 Ired. 453.

As no demand was necessary under the evidence, it is not worth while to consider whether the demand upon the deputy, Matson, would constitute a good demand upon the Sheriff.

As the appellant appeared and went to trial in the Circuit Court, he can not he heard now to object to the insufficiency of the transcript. Where the parties appear and try the case in the Circuit Court upon its merits, without objection, the. court will have jurisdiction without a transcript, and the evidence will be looked into to see what the demand was and what the defense.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.