Hunter v. Sherman

Illinois Supreme Court

Hunter v. Sherman

3 Ill. 539

DecidedDecember 15, 1840

StatusPublished

This text of 3 Ill. 539 (Hunter v. Sherman) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hunter v. Sherman, 3 Ill. 539 (Ill. 1840).

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Opinion

Smith, Justice,

delivered the opinion of the Court :

This was an action on a replevin bond, given to the defendant ;n error, as sheriff. Judgment was rendered in the late Municipal Court of the city of Chicago, by default, against Hunter, who was alone served with process, the other defendant not having been found. Numerous errors have been assigned, all of which are considered untenable.

It is first objected, that the Municipal Court had no jurisdiction of the cause. This question has been fully investigated, and was settled at the last term, in the case of Beaubien v. Brinckerhoff;

(1) and has been again decided at this term, it being held that the late Municipal Court of the city of Chicago, being a superior court of general jurisdiction, it will be presumed to have jurisdiction until the contrary is made to appear. No exception having been taken to the jurisdiction in the Court below, the jurisdiction must be presumed. The exception to the declaration, for the want of an averment that a writ of retorno habendo had been awarded by the Court, on the entry of the judgment in the Court, in favor of the defendants, in the action of replevin, is not well taken. There are five counts in the declaration, four of which aver, that by the consideration and judgment of the Court, in which the action of replevin was determined, that return of the goods was ordered and adjudged, at the October term of the Cook Circuit Court, 1836, to the defendants in the action of replevin ; and that the defendant in error refused and neglected to return the goods according to such order and adjudication ; and the last count specially refers to the record of the Court, as evidence of the truth of the averment that return of said goods was ordered and adjudged, and makes profert of such record.

It is a sufficient answer to the objection, to say, that the averment is in language full as broad as the condition of the bond; and no necessity is perceived for the assignment of a breach, in broader terms than the condition of the bond, which the parties had chosen to adopt. To require more, would seem to be a useless act, and one the rules of pleading do not seem to require. We have looked into precedents of declarations in similar cases, and find the averment has not only been omitted in the forms, but has been held to be unnecessary. (2)

It has also been held, that in this action the breach need not be formally assigned, and the plaintiff will be entitled to recover if a sufficient breach otherwise appear. (3) Where the condition is to prosecute the suit with effect, and without delay, a breach in those words would suffice, and proof of two years delay would suffice, without proving a judgment of non pros. (4). The issuing of a writ of retorno habendo is sometimes stated, (5) but is unnecessary. (6)

The numerous other objections assigned as error, are purely technical in their nature, most of which would be cured by the statute of jeofails, did they all exist; but many are not perceived to be in the record. The rendering a judgment against one, when the other is not served with process, is distinctly authorized by the practice act; and without enumerating all the causes here alluded to, it is sufficient to say that there appears to be no ground on which to sustain them. The last error to be considered, is as to the form of the rendition of the judgment, being for damages, when the action is in debt. This supposed error has been obviated by the amended record, sent up by virtue of the writ of certiorari, by which it appears that the late Municipal Court of the City of Chicago, since the filing of the original record in this Court, amended the judgment below so as entirely to remove the objection, which might otherwise have been fatal. Upon the whole case, we perceive no sufficient error to the prejudice of the plaintiff in error, and accordingly affirm the judgment, with costs.

Judgment affirmed.

Ante 269.

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Smith, Justice,

delivered the opinion of the Court :

This was an action on a replevin bond, given to the defendant ;n error, as sheriff. Judgment was rendered in the late Municipal Court of the city of Chicago, by default, against Hunter, who was alone served with process, the other defendant not having been found. Numerous errors have been assigned, all of which are considered untenable.

It is first objected, that the Municipal Court had no jurisdiction of the cause. This question has been fully investigated, and was settled at the last term, in the case of Beaubien v. Brinckerhoff;

(1) and has been again decided at this term, it being held that the late Municipal Court of the city of Chicago, being a superior court of general jurisdiction, it will be presumed to have jurisdiction until the contrary is made to appear. No exception having been taken to the jurisdiction in the Court below, the jurisdiction must be presumed. The exception to the declaration, for the want of an averment that a writ of retorno habendo had been awarded by the Court, on the entry of the judgment in the Court, in favor of the defendants, in the action of replevin, is not well taken. There are five counts in the declaration, four of which aver, that by the consideration and judgment of the Court, in which the action of replevin was determined, that return of the goods was ordered and adjudged, at the October term of the Cook Circuit Court, 1836, to the defendants in the action of replevin ; and that the defendant in error refused and neglected to return the goods according to such order and adjudication ; and the last count specially refers to the record of the Court, as evidence of the truth of the averment that return of said goods was ordered and adjudged, and makes profert of such record.

It is a sufficient answer to the objection, to say, that the averment is in language full as broad as the condition of the bond; and no necessity is perceived for the assignment of a breach, in broader terms than the condition of the bond, which the parties had chosen to adopt. To require more, would seem to be a useless act, and one the rules of pleading do not seem to require. We have looked into precedents of declarations in similar cases, and find the averment has not only been omitted in the forms, but has been held to be unnecessary. (2)

It has also been held, that in this action the breach need not be formally assigned, and the plaintiff will be entitled to recover if a sufficient breach otherwise appear. (3) Where the condition is to prosecute the suit with effect, and without delay, a breach in those words would suffice, and proof of two years delay would suffice, without proving a judgment of non pros. (4). The issuing of a writ of retorno habendo is sometimes stated, (5) but is unnecessary. (6)

The numerous other objections assigned as error, are purely technical in their nature, most of which would be cured by the statute of jeofails, did they all exist; but many are not perceived to be in the record. The rendering a judgment against one, when the other is not served with process, is distinctly authorized by the practice act; and without enumerating all the causes here alluded to, it is sufficient to say that there appears to be no ground on which to sustain them. The last error to be considered, is as to the form of the rendition of the judgment, being for damages, when the action is in debt. This supposed error has been obviated by the amended record, sent up by virtue of the writ of certiorari, by which it appears that the late Municipal Court of the City of Chicago, since the filing of the original record in this Court, amended the judgment below so as entirely to remove the objection, which might otherwise have been fatal. Upon the whole case, we perceive no sufficient error to the prejudice of the plaintiff in error, and accordingly affirm the judgment, with costs.

Judgment affirmed.

Ante 269.

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Bluebook (online)

3 Ill. 539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunter-v-sherman-ill-1840.