Glenn v. Brush

Stone, J.

A motion.was made for a continuance, based upon an affidavit made by one of the attorneys of the plaintiffs.

It is stated in the affidavit that one Rufus E. Talpey is a material witness for the plaintiff; that he is sick; that by him they can prove the ownership of the property in question to be in the plaintiffs.

Ownership involves the legal or rightful title, and whether one has a title to property depends upon facts: certain facts must be proven to show title. In an affidavit for a continuance, facts must be set forth with sufficient certainty to enable the court to determine the materiality of the evidence, and to enable the opposite party, if he thinks proper, to admit them and go to trial. •

The affidavit fails to state a single fact which would tend to establish ownership of the property in the plaintiffs. The motion for a continuance was properly refused. McBain v. Enloe, 13 Ill. 76; Moody v. The People, 20 id. 315; Cody v. Butterfield, 1 Col. 379.

The second error assigned is the overruling of. the plain-tiffs’ motion to strike the third, fourth and fifth pleas from the files. The objection is, that they are cumulative and unnecessary, and are waived by the sixth plea, which tenders the same issue, and are sham pleas.

A sham plea is a plea put in for the mere purpose of delay, of matter which the pleader knew to be false. These pleas have no such characteristics ; appear to be true and capable of proof, and the jury have said by their verdict that they are true. It is said that they are cumulative and unnecessary'; that the same facts can be given in evidence under the sixth plea. If we concede this, the question wherein consists the reason for objecting to them is pertinent.

The fourteenth section of the Practice Act declares that “the defendant may plead as many matters of fact in several pleas as he may deem necessary for his defense.

The defendant has done nothing more than avail himself of his privilege. In his third, fourth and fifth pleas he sets out, and we think properly, the special character of his claim .to the possession of the property, the title to which is in dispute.

The plaintiffs have no just cause of complaint for being thus more fully informed by their opponent of the whole defense they have to meet. Amos v. Sinnott, 4 Scam. 440.

It is argued that these pleas, being in the nature of special traverse, and not in confession and avoidance, are bad. The only reason assigned by the learned counsel who argued the case is, that the only traversable matter tendered by the issue was the ownership of the property, and that this issue was well tendered by the sixth plea, and that these special pleas incumbered the record.

The real issue was the ownership of the property, and a plea that properly tendered that issue was certainly a proper plea by itself, and if good alone, the fact that another good plea tendering the same issue was filed, would not render bad the first plea.

Counsel admit that a special traverse, in replevin, is proper, and that these three pleas are special traverses, and in that respect are like the sixth plea, and for that reason should be stricken from the files. As we have seen, the statute allows several pleas, and the motion to strike them from the files was properly overruled. Hunt v. Chambers, 21 N. Y. 620; Anderson v. Talcot, 1 Gil. 365; Rogers v. Arnold, 12 Wend. 30; The Mount Carbon Coal and R. R. Co. v. Andrews, 53 Ill. 176; Dayton v. Fry, 29 id. 525; Chandler v. Lincoln, 52 id. 74.

The third error assigned is the overruling the motion to suppress the deposition of R. B. Foster and C. W. Kelsey.

First. Because the commissioner who took the deposition Was appointed by the clerk of the district court. It was held by this court, in Ford v. Rockwell, 2 Col., that such appointment was authorized by the statute.

Second. That the plaintiff had no proper and sufficient notice to take the depositions. Notice was given that the defendant would sue out a dedimus potestatum, directed to P. C. Bush, of the town of Elizabethtown, in the county of Denton, State of Texas, as commissioner to take the depositions of R. B. Foster and C. W. Kelsey, of said county of Denton. The commissioner certifies that the depositions were taken in the town of Elizabeth, county of Denton, State of Texas.

The statute provides that the time and place of taking the depositions .shall be fixed by the officer taking the same. It does not require that the place where the deposition will be taken shall be stated in the notice. The notice given fully met the requirements of the statute ; and a substantial compliance in all that is necessary. County of Green v. Bledsoe, 12 Ill. 267; Curtis v. Martin, 20 id. 572. The commissioner is directed to examine R. B. Poster and O. W. Kelsey. He certifies he has examined the persons named as witnesses, and each for himself answers that his name is R. B. Poster and C. W. Kelsey, and the court will not assume they had any other name. The stipulation of counsel,. made part of the record in this case, shows the dedimusi,o be under the seal of the proper court.

It is not necessary that the issues be made up prior to the issuing of a dedimus and taking depositions. All that is necessary is, that the cause be depending. Rev. Stat., p. 311, § 8.

Sufficient appears to show that the depositions were, taken, in this case, and .with reference to the subject-matter of the suit. Rockford, R. I. and St. Louis R. R. Co. v. Coppington, 66 Ill. 510; Voice v. Lawrence, 4 McLean, 205.

The fifth error assigned is in sustaining an objection made to the questions propounded to the witness, Lockhart T. Grlenn: “ Can you state whether that property described in. the record is the same for which this action is brought?”

“Do you know whether or not the property described in. the record is the same for which this action is brought ? ”

What record is referred to does not appear. The questions are not leading, but immaterial and irrelevant, and inasmuch as the facts sought were elicited from the witness by other questions, the plaintiffs were not prejudiced by the ruling of the court.

The sixth error assigned in this case is the admitting in evidence certain proceedings'in attachment in suits of John V. Farwell et al. and J. W. Doane et al. v. Oliver S. Glenn and Rufus E. Talpey. This evidence tends to prove a special right of property in the defendant, by showing that he held it under the writs mentioned in his third, fourth and fifth pleas, and was properly admitted. Dayton v. Fry, 29 Ill. 525.

An alias writ is a second or further writ which is issued after the first writ has expired, ■ and is authorized by statute. Rev. Stat., p. 63, § 31; p. 64, § 35, and p. 501, § 6.

The alias writ was a good writ. What the first or original writ was does not appear in the record. The alias writ was properly admitted in evidence.

The seventh and eighth errors assigned are to the refusal of the court to let the plaintiffs prove a conversation between the coroner and the defendant, at the time of the levy of the writ of replevin, as to the time it was levied.

♦If offered for the purpose of contradicting the officer’s return, it was properly rejected; and if for any other purpose, it was not material or relevant, having no tendency to prove or disprove any issue in the case.

The ninth assignment of error relates to the admission in evidence of the.depositions of Foster, Kelsey and Shipley, for the reason that such testimony contradicted the record already in evidence, of a judgment in the case of Doane et al. v. Lockhart T. Glenn and George O. Talpey, interpleaders. This judgment was introduced to show title to the property in the plaintiffs ; and the objection to this evidence is based upon the assumption that the judgment was in full force and effect.

• The record shows that at the time the judgment was offered in evidence, the plaintiffs in that suit had sued out a writ of error to the supreme court of the United States, and had given bond and security as required by law, to make the writ of error operate as a supersedeas. That such proceedings had the effect of staying execution upon the judgment, or the right to bring action upon the judgment, is conceded by counsel in argument; but that for all other purposes the judgment is operative.

The object of a writ of error is to review and correct an error of law, and it is no bar to further proceedings, unless bond and security is given; when that is done the writ operates as a supersedeas; the party cannot afterward proceed to execute his judgment until the appellate court has rendered its judgment thereon. The judgment of the court below in the meantime is suspended; and a suspended or inoperative judgment is not evidence of title. It is suspended for all purposes until affirmed or reversed by the supreme court. If affirmed, it is binding; if reversed, it is a nullity.

We are aware there are decisions at variance with this opinion, but it is fully sustained by authority and reason. Woodbury v. Bowen, 13 Cal. 634; McGarrahan v. Maxwell, 28 id. 91; Thornton v. Mahoney, 24 id. 569; Byrne et al. v. Prather, 14 La. 663; Turnbull v. Cureton, 9 Martin (O. S.), 37, 68; United States v. Pacheco, 20 H. 263; Ambrose v. Weed, 11 Ill. 488-491; Helmer v. Boone, 6 J. J. Marsh. 353, 356; Hayes v. Ordway, 52 N. H. 284; Taylor v. Shew, 39 Cal. 536; Sherman v. Dilley, 3 Nev. 21; Griffith v. Seymour, 15 Iowa, 33; Campbell v. Howard, 5 Mass. 376.

The judgment being suspended was not evidence of title in the plaintiffs. The depositions were properly admitted.

The judgment not being evidence of title in the plaintiffs, the instruction of the court, that if the judgment obtained by the plaintiffs in the interplea is pending on error, operating as a supersedeas, then such judgment is no longer evidence of any right in the plaintiffs, was correct.

As the plaintiffs were in no way prejudiced by the introduction in evidence of the order of the court staying the proceedings in the cause after judgment, we express no opinion upon the legality of this order.

The gist of this action is the traverse of the property of the plaintiffs, and it devolved upon them to show -a title to the property in themselves.

The court was right in giving the instructions that it did, and in refusing those asked by the plaintiffs.

The judgment is Affirmed.