George P. Bent Company, Defendant in Error, v. Michael Zimmer, Sheriff, et al., Plaintiffs in Error.

Gen. No. 19,604.

(Not to he reported in full.)

Error to the Municipal Court of Chicago; the Hon. John K. Pbindivikle, Judge, presiding.. Heard in the Branch Appellate Court at the October term, 1913.

Reversed and remanded.

Opinion filed December 22, 1914.

Statement of the Case.

The George P. Bent Company, a corporation, instituted a replevin suit against Kate Franklin for the recovery of a piano, and such piano was taken under the writ and delivered to the Bent Company. On the trial of the suit the Bent Company took a nonsuit, and the court ordered that a writ of retorno habendo issue for the return of the piano to Kate Franklin and that she recover costs and have execution therefor. Subsequently the sheriff in execution of said writ took the piano from the Bent Company, and while the piano was in his possession the Bent Company instituted this replevin. suit to recover such piano, against Michael Zimmer, sheriff of Cook County, Kate Franklin and H. 0. Franklin. The replevin writ was directed to the bailiff of the Municipal Court and he replevined the piano, the writ being served on the sheriff, but not on the Franklins. Subsequently the sheriff entered his ap*120pearance and in Ms affidavit of merits alleged that he was lawfully in possession of the piano under the writ of retorno habendo. The trial was postponed for notice by publication to the Franklins and when they did not appear they were defaulted. On the trial a judgment was entered on a finding that the Bent Company was entitled to possession of the piano and this writ of error was brought.

Abstract of the Decision.

Replevin, § 124 * —when finding as to right to possession not sustained, by evidence. A finding in a replevin suit that a plaintiff was entitled to possession of a piano is not supported by the evidence, where it appeared that the defendant was a sheriff who had taken temporary possession of such piano under a writ of retorno habendo issued in a prior replevin suit, since such temporary possession of the sheriff was lawful, and where it also appeared that the evidence was insufficient to show that the plaintiff was lawfully entitled to possession.

William A. Rogan and John G. Petteys, for plaintiffs in error.

W. Knox Haynes and Michael Feinberg, for defendant in error; Michael Feinberg, of counsel.