{ "id": 2928482, "name": "William S. Vinyard et al. v. Jacob H. Barnes, for use, etc.", "name_abbreviation": "Vinyard v. Barnes", "decision_date": "1888-03-28", "docket_number": "", "first_page": "346", "last_page": "350", "citations": [ { "type": "official", "cite": "124 Ill. 346" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "38 Ill. 229", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "39 Ill. 13", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "14 Gray, 449", "category": "reporters:state", "reporter": "Gray", "case_ids": [ 2091678 ], "opinion_index": -1, "case_paths": [ "/mass/80/0449-01" ] }, { "cite": "3 Allen, 302", "category": "reporters:state", "reporter": "Allen", "case_ids": [ 2098492 ], "opinion_index": -1, "case_paths": [ "/mass/85/0302-01" ] }, { "cite": "58 Me. 476", "category": "reporters:state", "reporter": "Me.", "opinion_index": -1 }, { "cite": "86 Ill. 48", "category": "reporters:state", "reporter": "Ill.", "weight": 2, "opinion_index": -1 }, { "cite": "2 Watts, 432", "category": "reporters:state", "reporter": "Watts", "opinion_index": -1 }, { "cite": "7 Cal. 390", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2236656 ], "opinion_index": -1, "case_paths": [ "/cal/7/0390-01" ] }, { "cite": "10 Cal. 521", "category": "reporters:state", "reporter": "Cal.", "opinion_index": -1 }, { "cite": "14 Conn. 116", "category": "reporters:state", "reporter": "Conn.", "opinion_index": -1 }, { "cite": "81 Ill. 476", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "58 Me. 474", "category": "reporters:state", "reporter": "Me.", "opinion_index": -1 }, { "cite": "36 Vt. 370", "category": "reporters:state", "reporter": "Vt.", "weight": 2, "pin_cites": [ { "page": "392" } ], "opinion_index": -1 }, { "cite": "49 Ind. 261", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1411775 ], "opinion_index": -1, "case_paths": [ "/ind/49/0261-01" ] }, { "cite": "25 Wis. 621", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 11286061 ], "opinion_index": -1, "case_paths": [ "/wis/25/0621-01" ] }, { "cite": "27 N. 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Vinyard et al. v. Jacob H. Barnes, for use, etc." ], "opinions": [ { "text": "Mr. Justice Scholfield\ndelivered the opinion of the Court:\nThe question is presented by the rulings below, whether, \u25a0under a replevin bond, conditioned that \u201cthe plaintiffs shall prosecute their suit to effect, and without delay, and make return of the said property, if return thereof shall be awarded, \u201d \"there can be a recovery of the value of the property replevied, without proof of a judgment awarding its return. The principle, that the undertaking of a surety is construed strictly, :and can not be varied or enlarged by judicial construction, (Mix v. Singleton, 86 Ill. 194,) would seem to require that a negative answer be given, unless the duty to return the prop\u25a0erty necessarily results from the failure to prosecute the suit.It would seem quite clear that that can not be true, because it is provided by section 22, chapter 119, of the Revised Statutes of 1874, that \u201cif the plaintiff, in an action of replevin, .fails to prosecute his suit with effect, * * * judgment shall be given for a return of the property, and damages for the use \u25a0thereof from the time it was taken until a return thereof shall be made, unless the plaintiff shall in the meantime have be\u25a0come entitled to' the possession of the property, when judgment may be given against him for costs, and such damages as the -defendant shall have sustained.\u201d\nThe right of the defendant to the possession and the return of the property is finally determined by the judgment. (Warner v. Matthews, 18 Ill. 83.) And since the record here in evidence awarded no return, we must assume that it was made-to appear to the court that the plaintiff in the suit had become-entitled to the possession of the property, for, in the absence-of anything showing to the contrary, it is always to be assumed that the judgment rendered by the court was the right judgment to be rendered in the case. St. Louis and Southeastern Railway Co. v. Wheelis, 72 Ill. 538; Camp v. Small, 44 id. 37 Morton v. People, 47 id. 468.\nThe conditions to prosecute the suit to effect, and to make return of the property, are distinct, and the condition is broken and the bond forfeited by a failure in either, (Perrean v. Bevans, 5 Barn. & Cress. 284, Brown v. Parker, 5 Blackf. 291,) and so, evidence of a breach of the former condition can not therefore be held sufficient proof of a breach of the latter condition. Thomas v. Irwin, 90 Ind. 557; Way v. Barnard, 36 Vt. 370; Collamer v. Page, 35 id. 392; Clark v. Norton, 6 Minn. 419; Pettygrove v. Hoyt, 2 Fairfield, (11 Me.) 66; Badlaw v. Tucker, 1 Pick. 284; Kimmel v. Kent, 2 Watts, 432; Ladd v. Prentice, 14 Conn. 116; Cooper v. Brown, 7 Dana, (Ky.) 333; Clary v. Roland, 24 Cal. 148; Gallarati v. Orser, 24 N. Y. 324.\nCounsel for appellee say that the record of dismissal \u201cshows on its face that it is no legal judgment at all,\u201d\u2014that \u201cthe clerk, in writing up his record, has simply copied the judge\u2019s minutes.\u201d If this be true it can hardly help them. If they seek a recovery of the value of the property, the onus is on appellee to show a judgment awarding its return.\nThe judgments of the circuit and Appellate courts are reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion. Appellant\u2019s costs in the Appellate Court will be taxed by the clerk of this court, on certificate of clerk of the Appellate Court.\nJudgment reversed.", "type": "majority", "author": "Mr. Justice Scholfield" } ], "attorneys": [ "Messrs. Moses & Newman, for the appellants:", "Mr. S. R. Reed, also for the appellants:", "Mr. W. E. Lodge, and Mr. H. E. Huston, for the appellee:" ], "corrections": "", "head_matter": "William S. Vinyard et al. v. Jacob H. Barnes, for use, etc.\nFiled at Springfield March 28, 1888.\n1. Surety\u2014liability\u2014strict construction. The undertaking of a surety is to be construed strictly, and can not be varied or enlarged by judicial \u25a0construction.\n2. Replevin\u2014of the judgment, as fixing the rights of the pan-ties\u2014 presumption, when no retwn is awarded. The right of the defendant in replevin to the possession and return of the property is determined by the judgment. When no return is awarded in a judgment for the defendant, it will be presumed that it was made to appear that the plaintiff had become \u2022entitled to the possession of the property.\n3. Replevin bond\u2014two-fold character of its conditions\u2014breach. The conditions in a replevin bond to prosecute the suit to effect, and to make return of the property, are distinct ones, and the condition is broken and the bond forfeited by a failure in either; but evidence of a breach of the former condition can not be held sufficient proof of a breach of the latter.\n4. Same\u2014measure of damages im suit on the bond, in case no return is muarded. Under a replevin bond conditioned that \u201cthe plaintiffs shall prosecute their suit to effect and without delay, and make return of the said property if return thereof shall be awarded,\u201d there can be no recovery \u2022of the value of the property replevied, without proof of a judgment awarding its return.\n5. Presumption\u2014in support of the judgment below. In the absence of any showing to the contrary, it is always to be assumed that the judgment rendered by the court was the right one to be rendered in the case.\nAppeal from the Appellate Court for the Third District;\u2014 heard in that court on appeal from the Circuit Court of Piatt \u25a0county; the Hon. James F. Hughes, Judge, presiding.\nMessrs. Moses & Newman, for the appellants:\nThere was, substantially, but one breach alleged in the \u25a0amended declaration, viz., that the defendants did not prosecute their suit with effect. The usual practice, when the defendant is found not guilty on a contesting plea, is to award a retorno habendo; but it is not necessary the writ shall in fact issue. Manning v. Pierce, 2 Scam. 6; Hunter v. Sherman, id. 543; Anderson v. Talcott, 1 Gilm. 370; Johnson v. Howe, 2 id. 342.\nThe court must presume there was a legal reason for a dismissal without an award. If there were but a plea of non cepit or non detinet on file, there could be no award for a return. Johnson v. Howe, 2 Gilm. 345.\nAs to presumption in favor of the judgment, see Camp v. Small, 44 Ill. 37; Morton v. People, 47 id. 468; Hermann v. Pardrige, 79 id. 471; Clark v. Norton, 6 Minn. 418.\nAs to liability on replevin bond, see Perreau v. Bevan, 5 Barn. & Cress. 284; Turner v. Turner, 2 Brod. & Bing. 107; Page v. Evans, 1 Boss. & Pull. 378; Yea v. Lethbridge, 4 T. R. 433; Brown v. Parker, 5 Blackf. 291; Thomas v. Irwin, 90 Ind. 557.\nThe condition to return the property, if that is awarded, is not the same as that covered by the condition to prosecute the action with effect. Brown v. Parker, 5 Blackf. 291; Cleary v. Noland, 24 Cal. 148; Clark v. Norton, 6 Minn. 412; Badlam v. Tucker, 1 Pick. 284; Gallarati v. Ovser, 27 N. Y. 324; Cooper v. Brown, 7 Dane, 333; Ashley v. Peterson, 25 Wis. 621; Hollinsbee v. Ritchey, 49 Ind. 261; Way v. Barnard, 36 Vt. 370; Collamer v. Page, 35 id. 392; Tuck v. Moses, 58 Me. 474; Broadwell v. Paradice, 81 Ill. 476; Ladd v. Prentice, 14 Conn. 116; Langdoc v. Parkinson, 2 Bradw. 136; Goodhead v. Bowen, id. 578; Prentiss v. Mone, 3 id. 539; Troutman v. Hill, 6 id. 396; Kimball v. Citizens\u2019 Savings Bank, 3 id. 321; Matson v. Hanisch, 5 id. 102; Robinson v. People, 8 id. 281; Ledford v. Weber, 7 id. 87; Widdecombe v. Dietsch, 12 id. 157; Sermon v. Allan, 15 id. 569; Kantzler v. Albertson, 18 id. 314; Nickerson v. Co. 10 Cal. 521.\nMr. S. R. Reed, also for the appellants:\nThe statute, in cases of replevin, provides that \u201cif the plaintiff fails to prosecute his suit with effect, or suffers a non-suit or discontinuance, or if the right of property is adjudged against him, judgment shall be given for a return of the property,\u201d etc., \u201cunless the plaintiff shall in the meantime have-become entitled to the possession of the property, when judgment may be given against him for cost,\u201d etc. Starr & Curtis, chap. 119, sec. 22, p. 2016.\nThe replevin suit was dismissed. Now, what was the duty of the court in the premises, by the provisions of this statute, to award a return of the property, unless it appeared to the court that the defendant was not entitled to it ? And as no-return of the property was adjudged, the presumption is that, the defendant in the replevin was not entitled to it. Clark v. Norton, 6 Minn. 418.\nIt will be presumed that courts of general jurisdiction perform their duty and try causes according to the due course of law. Camp v. Small, 44 Ill. 37; Morton v. People, 47 id. 468; Hermann v. Pardrige, 79 id. 471.\nThe principal was not in this case adjudged to return the property, and no action can be sustained for failure to prosecute with effect when the right of the defendant in replevin to a return is gone. Clark v. Norton, swpra; Pettygrove v. Hoyt, 2 Fairchild, (Maine,) 68; Chambers v. Waters, 7 Cal. 390; Kimmel v. Hint, 2 Watts, 432.\nWhen the court failed to order the sale of the property seized under the writ, it operated as a dismissal of attachment. It operated to release the property from the levy, under the writ of attachment. Wasson v. Cone, 86 Ill. 48.\nThe defendants in a suit on the replevin bond may show that the interest of the plaintiff, in whole or in part, had, since that time, ceased to exist. Tuck v. Moses, 58 Me. 476; Davis v. Harding, 3 Allen, 302; Bartlett v. Kidder, 14 Gray, 449.\nMr. W. E. Lodge, and Mr. H. E. Huston, for the appellee:\nWe thin It the record of the dismissal of the replevin, suit shows on its face that it is no legal judgment at all; that the \u25a0clerk, in writing np his record, has simply copied the judge\u2019s minutes, and that it lacks all the essentials of a judgment. Martin v. Barnharrdt, 39 Ill. 13; Faulk v. Kellums, 54 id. 191; Edwards v. Evans, 61 id. 493.\nThe condition to prosecute with effect is separate and absolute. If, for any cause, the plaintiff fails, or suffers a non-suit, or verdict in judgment against him, it is- a breach of this \u25a0condition, for which an action lies for the full penalty of the bond. Humphrey v. Taggart, 38 Ill. 229; 2 Sutherland on Damages, 42, 43. See, also, Wasson v. Cone, 86 Ill. 48; Kerr v. Swallow, 33 id. 380; Stevison v. Earnest, 80 id. 519." }, "file_name": "0346-01", "first_page_order": 346, "last_page_order": 350 }