{
  "id": 2636209,
  "name": "Myron J. Amick v. George H. Young et al.",
  "name_abbreviation": "Amick v. Young",
  "decision_date": "1873-09",
  "docket_number": "",
  "first_page": "542",
  "last_page": "547",
  "citations": [
    {
      "type": "official",
      "cite": "69 Ill. 542"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "17 Ill. 281",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2592454
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/17/0281-01"
      ]
    }
  ],
  "analysis": {
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  "last_updated": "2023-07-14T19:22:57.309600+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Myron J. Amick v. George H. Young et al."
    ],
    "opinions": [
      {
        "text": "Mr. Chief Justice\nBreese delivered the opinion of the Court:\nThis is an appeal, from the Cook circuit court, from a judgment in an action of replevin, there instituted by Myron J. Amick against George H. Young and Timothy M. Bradley, resulting in a verdict and judgment for the defendants. The defendant Bradley was the sheriff of the county, and justified the taking in virtue of an execution issued on a judgment rendered against one Charles B. Foster and in favor of George H. Young, the other defendant, by the circuit court of Cook county, and as the property of Foster.\nThe property in dispute was a framed building, once a barn, belonging to one Finney, and purchased from him and removed on to a lot near by, leased \"for three years of Philo Carpenter, and then converted into a dwelling house.\nThere were several questions of fact submitted to the jury. One was, to whom did Carpenter lease the lot; to whom did Finney sell the barn; at whose expense was .it moved on to the leased lot; by whom and at whose expense was it converted into a dwelling, and finished as such.\nThese questions were all fairly submitted to the jury, and on two trials they found that Carpenter made the lease to Foster; that Foster bargained for the building when it was a barn; that he employed one McCauley to move it, under a permit, in Foster\u2019s name, from the proper authorities, on to the leased lot, and that he paid the workmen for fitting it up as a dwelling, for painting, etc. And though there is contradictory and conflicting testimony on some of these points, we can not, after a careful examination of it, come to the conclusion that the jury have found against its clear preponderance. Under such circumstances we could not disturb the finding. We are inclined to think the preponderance is on the side of the verdict, certainly so far as the actual possession of the property is conc\u00e9rned.\nAn objection is made by appellant, that the declarations of Foster were improperly received in evidence. Foster\u2019s statements were made whilst he was in the actual possession of the property, exercising full control over it, directing the workmen, offering to sell it, claiming it as his own ; and, although these acts may be consistent with the claim set up, that he was merely an agent, it was a proper subject for the j ury to pass upon, in view of all the facts in the case. What he said while thus in possession, may be considered as part of the res gestae, and therefore legitimate evidence. It would not, of course, conclude an adverse claimant, but it is testimony, to be considered with the other facts in the cause.\nAn agent, employed by one to superintend the erection of a building, engaging workmen and paying them, can not be allowed to base upon such acts a title to the property ; but, among other facts in this case, they deservedly occupy a prominent position, and were worthy the consideration of the jury.\nIt has always been held, that one strong indication of ownership of personal property, as this in question is admitted to be, is, exercising acts of ownership over it, having it in actual possession, making and paying for repairs upon it, offering to sell it, etc., all which furnish presumptive evidence of actual ownership, subject, however, to be rebutted by an adverse claimant. Acts and declarations of a party in actual possession are not admitted on the theory that any peculiar credit is due to such party, but because they give character to the fact to be investigated.\nIt is complained by appellant, the court did not allow the challenge of Lyman Moore, called as a juror, he having served as a juror in that court within the past year, as a substitute for one on the regular panel. Moore was on the regular panel when called upon to serve in this case, but was excused, and did not serve in the cause, so that no injury was done by disallowing the peremptory challenge, even if the court should have allowed the challenge.\nAnother point made by appellant, and assigned as error, is, that the court required a bond on appeal, in the penalty of three thousand dollars.\nThis was not a money recovery, but a judgment in rem, so to speak\u2014that the property replevied be returned to the party out of whose possession it had been taken, who was the appellees.\nIt is urged by appellant, that the object of the bond on an \u25a0appeal to this court is, to secure the payment of all costs which may accrue in the suit in this court. To get at the value of the property, a suit must be instituted upon the replevin bond.\nThis appeal was taken after the Practice Act of 1872 went into effect. There, it is provided by section 67, if the appeal is from a judgment or decree for the recovery of money, the condition of the bond shall be for the prosecution of the appeal, and the payment of the judgment, interest, damages and costs, in case the judgment is affirmed. In all other cases the condition shall be directed by the court, Avith reference to the character of the judgment, decree or order appealed from. Sess. Laws, 349.\nThe bond before us shows only the usual condition was imposed by the court, and that is, to pay the judgment, costs, interest and damages rendered and to be rendered. They are blank in the bond, and we perceive no reason why a penalty so large was imposed in this case. But it is not ground of error, in requiring a bond with a penalty so great, ivhich can be assigned as error in law upon the record.\nIt is also urged by appellant, that the creditor\u2019s bill, filed by Young against Foster, was an abandonment of the execution.\nIt is claimed by appellee, such bill was filed in aid of his execution at law to remove the cloud upon this property, so that it might bring its value when sold under theft. fa. We see no impropriety in this. Weightman et al. v. Hatch, 17 Ill. 281.\n\u2022This case mainly depending on facts on which two juries have passed in the same way, under much conflict of testimony, and we believing the preponderance is with appellees, the verdict must stand, unless the court misdirected the jury in matters of law.\nIt is complained, in this respect, that the court should not have modified appellant\u2019s third instruction.\nThat instruction was as follows:\n\u201cIf they find, from the evidence, that Foster, while doing the acts as detailed in the evidence, was acting as the agent of one Gillespie, then the acts of said Foster, while so acting, do not, as a matter of law, raise a presumption of title in Foster.\u201d\nThe modification by the court was, by inserting these words between the words \u201cdo not\u201d and \u201cas:\u201d \u201cof themselves, in the absence of other evidence.\u201d\nWe perceive no objection to the modification. It makes the instruction accord with what we have said in this opinion.\nNo specific objection is pointed out to the instructions on behalf of appellees. The second was proper. The burden of proof was on the plaintiff, in replevin, to show the prop\u00e9rty replevied was his, or that he had a right to the immediate possession of it.\nOn the whole record we can see no error which should reverse the judgment, and the same is therefore affirmed.\nJudgment affirmed.",
        "type": "majority",
        "author": "Mr. Chief Justice"
      }
    ],
    "attorneys": [
      "Mr. Consider H. Willett, and Mr. G. H. Stanford, for the appellant.",
      "Mr. J. M. Burrows, and Mr. S. K. Dqw, for the appellees."
    ],
    "corrections": "",
    "head_matter": "Myron J. Amick v. George H. Young et al.\n1. Evidence\u2014declarations of third, party in possession of property as part of res gesta. The declarations and statements of a defendant in an execution, while in the actual possession of property, exercising full control over it, directing the workmen in repairing the same, and offering to sell, claiming it as his own, are legitimate and proper evidence against one claiming the property as against the sheriff, who has levied upon the same for the debt of the party whose declarations are sought to be shown, as they are a part of the res gesta.\n2. Possession\u2014evidence of ownership. The fact that a party was in the actual possession of a building, which was personal property, making and paying for repairs upon it, offering to sell it, and exercising other acts of ownership, furnishes presumptive evidence of ownership in him, subject to be rebutted by the adverse claimant. If it be shown that such person was an agent, employed to superintend the making of such repairs, then no title could be based upon such acts of ownership.\n3. Juror\u2014error cured in not allowing peremptory challenge. Where a juror is excused and does not serve in a cause, this will obviate any error in not allowing a challenge made on the ground that he had served as such in the court within a year, as the error in such case could work no injury.\n4. Appeal\u2014requiring too great a penalty in bond, no ground for reversing judgment appealed from. The requiring of an appeal bond in too great a penalty is not a ground of error for reversing the judgment in the case appealed from.\n5. Levy\u2014abandonment of\u2014creditor's bill. The filing of a creditor\u2019s bill, after the levy of an execution, in aid of the execution to remove a cloud upon the title, so that it may bring its value when sold, is not an abandonment of the levy.\n6. Burden of proof\u2014in replevin. In replevin, the burden of proof is upon the plaintiff to show that the property is his, or that he has a right to its immediate possession.\nAppeal from the Circuit Court of Cook county; the Hon. Lambert Tree, Judge, presiding.\nMr. Consider H. Willett, and Mr. G. H. Stanford, for the appellant.\nMr. J. M. Burrows, and Mr. S. K. Dqw, for the appellees."
  },
  "file_name": "0542-01",
  "first_page_order": 542,
  "last_page_order": 547
}