I concur in affirming the judgment, but not in the reasons for so doing. I admit that the affidavit on which the writ of replevin was issued was bad, but not that as a consequence the justice "was without jurisdiction. Affidavits in replevin and complaints in forcible detainer, are, by the Supreme Court, put upon the same footing, even when the suits are begun before a justice. Evans v. Bouton, 85 Ill. 579; and if defective may be amended. Snowell v. Moss, 70 Ill. 313; Thompson v. Sornberger, 78 Ill. 303.
But if amenable, such affidavits and complaints are, if defective, only voidable—not void collaterally. Durham v. Heaton, 28 Ill. 264; Maynard v. People, 135 Ill. 416; Johnson v. Miller, 50 Ill. App. 60.
Defects may be waived by conduct even if not amended. Center v. Gibney, 71 Ill. 557.
A complaint in bastardy, “ insufficient to justify the issuance of a warrant,” which does “ not show probable cause,” is amendable, and if not amended, and an examination before a justice ensues, the defendant may commit perjury by falsely denying carnal intercourse. Maynard v. People, 135 Ill. 416.
The dismissal of the suit by the justice was a non-suit. McKinney v. Finch, 1 Scam. 152.
Bruner v. Dyball, 42 Ill. 34, is an authority for this suit. If it be not consistent with Blair v. Ray, 103 Ill. 615, and Vineyard v. Barnes, 124 Ill. 346, followed by us in Matson v. Davies, 35 Ill. App. 78, that is not our affair. National Bank v. Jennings Tr. Co., 44 Ill. App. 285.
But there may be no inconsistency. On direct review, error assigned must be made to appear affirmatively, or it will be overruled. But a judgment is not evidence “ of any matter to be inferred by argument from the judgment.” Duchess of Kingston Case, 20 Howell State Trials, 355, 538; Smith L. C., 1998.
Apply that rule here. The justice should, on the dismissal of the replevin suit, have awarded a return of the property, unless in the meantime the plaintiff had become entitled to the possession of it. Sec. 22, Ch. 119, Replevin.
He did not award a return, ergo, the plaintiff had become entitled. That inference is not evidence.
As, after obtaining the property on the replevin writ, and before the commencement of this suit, the appellants converted the property to their own use, they must justify that conversion or pay for the property.
Mr. Presiding Justice Shepard.I conceive that although a defective affidavit in replevin, being amendable, may confer jurisdiction upon the justice to issue the writ, yet, that, the affidavit hot being amended, the justice became ousted of his jurisdiction to award a retorno, or do anything in the cause except to dismiss the suit, and therefore I concur in the opinion of Hr. Justice Waterman.