#### The American Preservers’ Company v. Andrew D. Bishop.

Opinion filed February 19, 1900.

1. Replevin—judgment of recovery should precede order for writ of retorno habendo. Under section 22 of the Replevin act, upon dismissal of the suit by the plaintiff, the court, before ordering a writ of retorno habendo, should enter formal judgment that defendant recover from the plaintiff the property taken under the writ.

2. Appeals and errors—error in replevin .judgment may be cured on appeal by filing an amended record. Error in ordering a writ of retorno habendo without giving judgment that defendant recover the property from the plaintiff, is cured on appeal by the filing of an amended record showing that such judgment was in fact entered but was omitted by the clerk from the former record.

American Preservers’ Co. v. Bishop, 83 Ill. App. 493, affirmed.

Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hón. Charles E. Fuller, Judge, presiding.

Moran, Kraus & Mayer, for appellant.

Lynden Evans, and Arnd & Arnd, for appellee.

Per Curiam:

This was an action of replevin, brought by the American Preservers’ Company, against Andrew D. Bishop. After the cause was at issue upon pleas and replications, on May 7, 1898, the following judgment was entered in the cause: “On motion of plaintiff’s attorney it is ordered that this suit be and the same is hereby dismissed at plaintiff’s cost. Therefore 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. It is ordered that a retorno habendo do issue herein for the return of the property replevined herein by virtue of writ of re*69plevin issued in said cause. Thereupon the plaintiff enters herein its motion to set aside the above order, which motion is hereby entered and continued to Saturday, May 7, 1898.” On the latter date the motion was overruled, and the plaintiff prayed for and obtained an appeal to the Appellate Court, where the judgment was affirmed. To reverse the judgment of the Appellate Court plaintiff appealed to this court.

Section 22 of chapter 119 of the Revised Statutes of this State (the Replevin act) provides: “If the plaintiff in an action of replevin 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 and damages for the use thereof.” Here, when the plaintiff dismissed its suit, it was the duty of the court, before entering an order for a writ of retorno habendo, to enter a formal judgment that the defendant recover of and from the plaintiff the property taken under the writ of replevin. This, as is shown by the foregoing judgment, was not done, but there was merely a judgment for costs and that a retorno habendo issue.'

It appears, however, that while the cause was pending in the Appellate Court the defendant in the cause suggested a diminution df the record and obtained leave to file an amended record, and the following amended record was filed.:

> “Placita to transcript of amended record from circuit court, Cook county, filed in said Appellate Court:

> ‘ ‘The American Preservers’ Company vs. Andrew D. Bishop.

> 91,208.

“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 their *70respective 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 cause, 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:

> “ ‘American Preservers’ Company vs. Andrew D. Bishop.

> 91,208.

“ ‘On motion of plaintiff’s 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 habendo do issue herein for the return of said property taken under said writ of replevin. Thereupon the plaintiff enters hereip. its motion to set aside the above order, which motion is hereby entered and continued to Saturday, May 7, 1898. ’

> “And the clefik of this court is hereby ordered and directed to forthwith spread this order of record in this cause.”

The amended record cured the error relied upon to reverse the judgment, and the Appellate Court properly affirmed the judgment of the'circuit court.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.