{ "id": 5256095, "name": "American Preservers' Co. v. Andrew D. Bishop", "name_abbreviation": "American Preservers' Co. v. Bishop", "decision_date": "1899-06-29", "docket_number": "", "first_page": "493", "last_page": "497", "citations": [ { "type": "official", "cite": "83 Ill. App. 493" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "19 Ill. 47", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 441592 ], "opinion_index": -1, "case_paths": [ "/ill/19/0047-01" ] }, { "cite": "49 Ill. App. 275", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5126014 ], "opinion_index": -1, "case_paths": [ "/ill-app/49/0275-01" ] }, { "cite": "47 Ill. App. 139", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": -1 }, { "cite": "52 Ill. 360", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "12 Ill. 178", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "18 Ill. 390", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 438662 ], "opinion_index": 0, "case_paths": [ "/ill/18/0390-01" ] }, { "cite": "17 Ill. App. 30", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 867334 ], "opinion_index": 0, "case_paths": [ "/ill-app/17/0030-01" ] }, { "cite": "68 Ill. 372", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2626818 ], "opinion_index": 0, "case_paths": [ "/ill/68/0372-01" ] }, { "cite": "49 Ill. App. 270", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5129687 ], "opinion_index": 0, "case_paths": [ "/ill-app/49/0270-01" ] }, { "cite": "39 Ill. App. 490", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5016679 ], "opinion_index": 0, "case_paths": [ "/ill-app/39/0490-01" ] }, { "cite": "19 Ill. 47", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 441592 ], "opinion_index": 0, "case_paths": [ "/ill/19/0047-01" ] } ], "analysis": { "cardinality": 414, "char_count": 7976, "ocr_confidence": 0.591, "pagerank": { "raw": 3.070242068274127e-07, "percentile": 0.8572331823206681 }, "sha256": "6e96388265701f2734a75c2e80d9bfc88ca5a12b7c0df8eb3238091d2b3a0fc4", "simhash": "1:16fdf56478c12778", "word_count": 1409 }, "last_updated": "2023-07-14T18:22:35.373210+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "American Preservers\u2019 Co. v. Andrew D. Bishop." ], "opinions": [ { "text": "Mr. Justice Adams\ndelivered the opinion of the court.\nThis was an action of replevin by appellant against appellee. May 5, 1898, the following judgment was entered in the cause:\n\u201c On motion of plaintiff\u2019s attorney it is ordered that this suit be and the same is hereby dismissed at plaintiff\u2019s cost.\nTherefore it is considered by the court that the defendant do have and recover of and from the plaintiff his costs and charges in this behalf expended and have execution therefor.\nIt is ordered that a retorno habendo do issue herein for the return of the property replevied herein by virtue of writ of replevin issued in said cause.\nThereupon the plaintiff enters herein its motion to set aside the above order, which motion is hereby entered, and continued to Saturday, May 7, 1898.\u201d\nMay 7, 1898, the motion to set aside the order ivas overruled. December 15, 1898, after appellant had perfected his appeal by filing bond, the order of May 5, 1898, was amended. The amending order is as follows:\n\u201c This cause having come on to be heard on motion of defendant to amend the record of the order and 'judgment entered herein on the 5th day of May, 1898, and due notice of said motion having been given to the plaintiff, and the plaintiff and defendant appearing in court by th\u00e9ir respective attorneys, and the court having heard counsel for both, plaintiff and defendant, and being fully advised in the premises, the court finds that on the 5th day of May, 1898, judgment was rendered in this case, among other things, that the defendant have and recover of the plaintiff a return of the property taken under the writ of replevin issued in this cause, and that the clerk of this court has omitted to set forth such judgment in the record of said order and judgment of May 5, 1898; it is therefore ordered by the court that the record of said order and judgment of May 5, 1898, be and the same is hereby amended so as to read as follows:\n1 American- Preservers\u2019 Company VS. Andrew D. Bishop.\nOn motion of plaintiff\u2019s attorney, it is ordered that this suit be and the same is hereby dismissed, and on motion of defendant it is considered by the court that the defendant have and recover of and from the plaintiff a return of the property taken under the writ of replevin herein, and also his costs of suit in this behalf and have execution for said costs, and it is further ordered that the writ of retorno luibendo do issue herein for the return of said property taken under said writ of replevin. Thereupon the plaintiff enters herein its motion to set aside the above order, which motion is hereby entered and continued to Saturday, May 7th, 1898.\u2019\nAnd the clerk of this court is hereby ordered and directed to forthwith spread this order of record in this cause.\nTo the entry of the above and foregoing findings and order, and every part thereof, the plaintiff objects and excepts, and prays an appeal to the Appellate Court of the First District of Illinois; which appeal is allowed, on plaintiff giving bond with surety, to be approved by the clerk of this court, in the sum of two hundred and fifty dollars ($250); bond and bill of exceptions to be filed within thirty days.\u201d\nThe error assigned is:\n\u201c The court below erred in entering so much of the judgment entered in said cause on May 5, 1898, as ordered a return of the property replevied in said cause by virtue of the writ of replevin issued in said cause.\u201d\nThe record pres\u00f3nts two questions: first, whether there is \u2022 reversible error in the judgment entered May 5,1898, and second, whether the amending order was proper.\nThe statute concerning replevin provides that if the plaintiff in an action of replevin fails to prosecute his suit with effect, \u201cjudgment shall be given for a return of the property and damages for the use thereof,\u201d etc., and strict formality would require an express judgment that the property be returned to the defendant, prior to the order for the issuance of the writ of retorno, but we think the judgment appealed from, although not strictly formal, good in substance. The objection made here was made in McCrory v. Hamilton, 39 Ill. App. 490, which was debt on a replevin bond, and the court say:\n\u201c It is next urged that the judgment in the replevin suit is not sufficiently formal, and that it is not, in terms, a judgment that the property be returned to the defendant, as alleged in the declaration, but merely that the defendant have a writ of retorno h alendo. The objection is, as we think, not substantial. While the judgment is somewhat informal, yet it is not so defective as to be regarded as a nullity, in effect it is an adjudication of costs against the plaintiff, and that the property be returned to the defendant.\u201d\nSection 3 of Chapter 7 of the Rev. Stat. provides : \u201cHo judgment shall be reversed in the Supreme Court for mere error in form, if the judgment be for the true amount of indebtedness or damages.\u201d In Coats v. Barrett, 49 Ill. App. 270, it was held, correctly, as we think, that this section is applicable to the Appellate Court. Sec. 1, S. & C.\u2019s Stat., Chap. 37, paragraph 30.\nThe statute in relation to ejectment requires that the verdict of the jury shall specify the estate established on the trial, when the verdict is for the plaintiff, and when an ejectment suit is tried by the court, without a jury, the finding, if for the plaintiff, must so specify.\nIn Minkhart v. Hankler, 19 Ill. 47, which was ejectment tried by the court, without a jury, the court found \u201cthe defendant guilty of unlawfully ivithholding from the plaintiffs the premises in the plaintiffs\u2019 declaration mentioned, to-wit: Lot number 17, etc., * * * . and that the plaintiffs are entitled to the same.\u201d There was no specific finding, in terms, of the estate to which the plaintiffs were entitled, yet the court held the finding sufficient.\nSubstance, rather than form, is to be considered in determining whether a judgment is sufficient. Freeman on Judgments, Secs. 50-51; Wiggins v. City of Chicago, 68 Ill. 372; Mapes et al. v. Scott, 94 Ib. 379.\nWe think it clear that the omission of a formal judgment, in terms, from the judgment of May 5, 1898, was a mistake or misprision of the clerk, as found by the court in the amending order of December 15, 1898, and such being the case, the court could lawfully enter the amending order. Freeman on Judg., Sec. 72; 1 Black on Judg., Sec. 151; Ives v. Hulce, 17 Ill. App. 30; Coughran v. Gutcheus, 18 Ill. 390; Ayer v. Chicago, 149 Ib. 262, 266; Adams v. Gill, 158 Ib. 194; Tucker v. Hamilton, 108 Ib. 464.\nThe judgment will be affirmed.", "type": "majority", "author": "Mr. Justice Adams" } ], "attorneys": [ "Moran, Kraus & Mayer, attorneys for appellant.", "Arnd & Arnd and Lynden Evans, attorneys for appellee; Lynden Evans, of counsel." ], "corrections": "", "head_matter": "American Preservers\u2019 Co. v. Andrew D. Bishop.\n1. Replevin\u2014When Plaintiff Fails to Prosecute his Suit.\u2014If the plaintiff in an action of replevin fails to prosecute his suit with effect, judgment is to be given for a return of the property and damages for the use thereof.\n2. Judgments\u2014Sec. S, of Chap. 7, R. S., Applicable to Appellate Court.\u2014Section 3 of Chap. 7, R. S., providing that no judgment shall be reversed in the Supreme Court for mere error in form, if the judgment be for the true amount of indebtedness or damages, is alike applicable to the Appellate Court.\n3. Same\u2014Substance Rather than Form.\u2014Substance rather than form is to be considered in determining whether a judgment is sufficient.\nReplevin.\u2014Trial in the Circuit Court of Cook County; the Hon. Charles E. Fuller, Judge, presiding. Verdict and judgment for defendant; appeal by plaintiff.\nHeard in this court at the October term. 1898.\nAffirmed.\nOpinion filed June 29, 1899.\nMoran, Kraus & Mayer, attorneys for appellant.\nArnd & Arnd and Lynden Evans, attorneys for appellee; Lynden Evans, of counsel.\nIt is a well settled rule of the common law that neither irregularity nor informality will render a judgment void. Chestnut v. Marsh, 12 Ill. 178; Wells v. Hogan, Br. (Ill.) 337; Johnson v. Grillett, 52 Ill. 360; Schertz v. Nat. Bank, 47 Ill. App. 139; Coats v. Barrett, 49 Ill. App. 275; Minkhart v. Hankler, 19 Ill. 47." }, "file_name": "0493-01", "first_page_order": 497, "last_page_order": 501 }