Stroner v. Prokop

30 Ill. App. 56, 1888 Ill. App. LEXIS 214

• Court: Appellate Court of Illinois
• Decided: January 16, 1889
• Status: Published

Opinion

Gary, J.

Fortunately for the appellee in this case, this court may decide according to the apparent justice of it without trenching upon the doctrine of the almost conclusive verity of the officer’s return.

This was an appeal by certiorari in which the petition of the appellee alleged that he was never served with the original attachment writ, as a garnishee, nor with the sci. fa. after the conditional judgment, though the transcript of the justice shows that the constable returned the writ served upon him. The original attachment writ was not brought in, in the Circuit Court, so that there was only the statement, in the transcript that it was ever served, and there is no authority that a recital in the transcript of the acts of the constable is conclusive. As to the sci. fa., it is unnecessary to decide whether the return upon it was good or not, for if there was no foundation for the conditional judgment, the sai. fa. was a nullity.

The court properly refused to admit affidavits offered by appellant to show service of the original attachment writ. The return upon the writ itself was primary evidence of the service, and other evidence could only be admitted to supply the place of that, if lost, or in corroboration of it, if produced. What the contents of the affidavits were does not appear, and it can not be ascertained whether they even tended to show service.

On the merits, the appellant relied wholly upon the testimony of the appellee, who swore that he owed Stroner nothing, and therefore the only claim of the appellant is that he has got the appellee in a trap in which the court ought to hold him.

Judgment affirmed.