Mitcheltree v. Stewart et al.

It is sufficient in a scire facias to foreclose a mortgage, to set out a copy of the mortgage with the certificates of acknowledgment and of record annexed, without averring that the mortgage was acknowledged or recorded, or averring that default had been made in the payment of the money mentioned therein, where it appears from the mortgage that the money was to have been paid before the issuing of the writ.

THE record in this case shows that the following writ was issued, and proceedings had in the Court below:

"State of Illinois, Schuyler County, ss.

"The People of the State of Illinois to the Sheriff of Schuyler County, Greeting. Whereas Isaac Stewart and James É. Pearson, merchants, trading under the firm of Isaac Stewartand Pearson, of the city of Louisville, and State of Kentucky, by Browning and Worthington, their attorneys, have filed in the clerk's office of our Circuit Court in and for said county of Schuyler, and State of Illinois, a certain deed of mortgage, which said deed of mortgage is duly executed and recorded in the Recorder's office in and for said county and State, according to the statute in such case made and provided. And whereas the said Isaac Stewart and James E. Pearson, by their attorneys aforesaid, have filed in the said clerk's office a precipe directing a writ of scire facias to be issued upon said deed of mortgage, which said deed of mortgage is in the words and figures following, to wit:" [Here the mortgage is set out in hæc verba, by which it appears that the mortgage was made to the plaintiffs to secure the payment of a promissory note for $654,59, due to the plaintiffs; a book account amounting to $393,76, due to Neff, Wanton, & Co.; and three notes, in the aggregate, for the sum of $662,89, due to Muir & Wiley, the amounts paid upon the mortgage to be applied pro rata in extinguishment of the several debts. A certificate of acknowledgment before the clerk of the Schuyler Circuit Court, and a certificate of the Recorder of Schuyler county, certifying that the mortgage was duly recorded, were annexed to the copy of the mortgage in the writ, but there was no averment that the same was acknowledged or recorded. The mortgage was executed by Mitcheltree and wife.]

"By virtue of which said deed of mortgage, above recited, and the conditions therein contained, and according to the tenor and effect of the notes and accounts therein specified and described; it appears that the said John Mitcheltree is indebted to the said Isaac Stewart and James E. Pearson in the sum of one thousand seven hundred and eleven dollars and twenty-four cents, together with interest thereon according to the tenor and effect of said notes and accounts, and according to the provisions of the statute in such case made and provided.

"We therefore command you that you summon the said John Mitcheltree, if he shall be found in your county, to be and appear before the Circuit Court of said county of Schuyler and State of

Mitcheltree v. Stewart et al.

Illinois, on the first day of the next term thereof, to be holden at the court house in Rushville, on the first Monday in the month of November next, (A. D. 1837,) to show cause, if any he have, why judgment should not be rendered against him, for the said sum of one thousand seven hundred and eleven dollars and twentyfour cents, together with interest as aforesaid, which appears to be due and owing from the said John Mitcheltree to the said Isaac Stewart and James E. Pearson, by virtue of said mortgage and the conditions therein contained, and according to the tenor and effect of the notes and accounts therein mentioned and expressed. And have you then there this writ.

L. S.

"Witness Robert A. Glenn, Clerk of our said Circuit Court, at Rushville, this twenty-first day of October, in the year of our Lord one thousand eight hundred and thirty-seven.

"ROBERT A. GLENN, Clerk."

And afterwards, to wit, on the first day of November, A. D. 1837, the said writ of scire facias was returned by the sheriff of said county of Schuyler with the following indorsement thereon, to wit:

"Executed the within as the law directs, by reading and delivering to defendant a true copy. "November 1st, 1837.

"THOS. HAYDEN, S. S. C. Ill., "By RICHARD DOUGHERTY, Dept." "On the calling of the cause for trial, the defendant, by his attorney, entered a motion to quash the return of the sheriff on said writ, which being considered by the Court, was overruled; and thereupon the defendant moved to quash the writ in said cause, for a variance between the writ and mortgage, which motion was overruled by the Court. Defendant then offered to plead to the merits, and asked time to write and file his plea herein, which was not allowed. And thereupon judgment was entered by default against the defendant," who excepted to the several decisions of the Court.

Judgment was entered for $2,218,96. Thereupon an attorney for the defendant made affidavit that the motions were made by mistake; that no appearance was intended to be entered by the defendant, and no appearance was in fact entered; and that the defendant was entitled to a credit of $1400. The plaintiffs then remitted $1,452,50, and took judgment for the balance, $766,46 and costs. The cause was heard at the June term, 1838, of the Schuyler Circuit Court, before the Hon. James H. Ralston.

The defendant appealed to this Court, and assigned for error the decisions of the Court below.

A. WILLIAMS, for the appellant, objected to the scire facias because it did not appear that Stewart and Pearson were authorized

Mitcheltree v. Stewart et al.

to act for the other creditors named in the mortgage, and because it contained no averment that the mortgage was either acknowledged or recorded, or that default had been made in the payment of the money secured by it. He cited R. L. 376 (1); 2 Saund. R. 72 b, f, n.

He also contended that the mortgage was without consideration, in part, at least, and that the sheriff's return was insufficient.

O. H. BROWNING, for the appellees.

The record shows an appearance by the defendant. It is too late to except to a sheriff's return after an appearance has been entered.

An informality in a scire facias can be taken advantage of only by demurrer. State Bank v. Snyder, Breese 122; Marshall v. Maury, 1 Scam. 231.

SMITH, Justice, delivered the opinion of the Court:

Three grounds have been assigned for error in this cause, to wit, That the Circuit Court erred in refusing to quash the sheriff's return to the writ of scire facias; to quash the writ itself; and in rendering judgment in the action. We perceive no error in the decision of the Circuit Court on the points made. The sheriff's return appears to be full and formally correct.

The writ is conceived to be sufficiently full and descriptive of the cause of action; and as it recites the mortgage, we do not consider that there can be any valid objection to it. As to the rendition of the judgment, and the application to set it aside, full and entire justice has been done in the cause; and the amount claimed by the defendant having been allowed, and judgment entered only for the amount admitted by him to be actually due, we are of opinion that the Court did not err in refusing to set aside the default; and therefore the judgment is affirmed with costs. Judgment affirmed.

Note. See as to service of process, Ditch v. Edwards, 1 Scam. 127; Wilson v. Greathouse, Idem. 174; Clemson et al. v. Hamm, Idem. 176; Ogle v. Coffey, Idem 239; Garrett v. Phelps, Idem. 331.

As to scire facias, see Menard v. Marks, 1 Scam. 25; Hall et al. v. Byrne et al., Idem. 140; Marshall v. Maury, Idem. 231; Gilbert v. Maggord, 1 Scam.; Day v. Cushman et al., Idem.

(1) Gale's Stat. 393.

Harrison v. Singleton.

THOMAS HARRISON, appellant, v. THOMAS SINGleton, administrator of the estate of GILMAN JEWETT, deceased, appellee.

Appeal from Monroe.

Where on appeal, the record does not show that final judgment has been rendered in the Court below, though the verdict of the jury appears in the record, the appeal will be dismissed; -an appeal can only be taken from the judgment of the inferior Court.

On the trial of the right to property levied on by execution, the claimant cannot object to the execution. By proceeding under the law authorizing the trial of the right of property, he admits the validity of the execution, and only claims that it has been levied on his property, and not on the property of the defendant in the execution. If the execution is a nullity, the remedy is by an action of trespass, replevin, or trover against the officer.

An execution from a probate justice of the peace for a sum exceeding $100, may be directed to any constable of the county. On a trial of the right of property in the Circuit Court, the jurors need not sign the verdict; they are only required to sign the verdict, where the trial is had before the ministerial officer.

THIS was an appeal from the trial of the right to property levied on by execution in favor of Thomas Singleton, administrator, against Thomas Harrison, for the sum of $151,75, debt and costs, issued by Enoch Moore, probate justice of the peace of Monroe county, directed to any constable of said county.

In the Circuit Court, Harrison moved to quash the proceedings in the cause, which motion was overruled, and a trial had, and verdict rendered that the property was subject to the execution. Harrison appealed to this Court. The proceedings were had in the Circuit Court, at the February term, 1838, before the Hon. Sidney Breese.

J. REYNOLDS, J. SHIELDS, and G. P. KOERNER, for the appellant, contended that the justice of probate had no power to issue an execution for a sum exceeding $100; that an execution for a sum exceeding $100, could not be directed to a constable; that the officer's return to the execution was insufficient, it being signed, "Jacob Clark," without the addition of any words showing the character in which he acted; and that the verdict in the Circuit Court was insufficient, because it was not signed by the jurors. They cited R. L. 538; Gale's Stat. 587.

LYMAN TRUMBULL, for the appellee, cited C. L. 65, § 7, 657, § 4; Gale's Stat. 50; 721.

LOCKWOOD, Justice, delivered the opinion of the Court: It does not appear from the record in this cause, that final judgment has been given in the Circuit Court. There is therefore

Towell et al. v. Gatewood.

nothing to appeal from. The appeal is dismissed at the appellant's costs.

It appears from the record, that this was a trial of the right of property in the Court below, and that Harrison, the claimant, objected to the execution on which the levy had been made, on the ground that it was a nullity, and had been issued by a court not having jurisdiction. The Court overruled the objection, and we think properly.

The claimant, if the execution was a nullity, ought to have brought an action of trespass, replevin, or trover for the goods, against the officer, and not have required a trial of the right of property. By proceeding in this manner, he has admitted the validity of the execution, and only claims that it has been levied on his property, and not on the property of the defendant in the execution. We are also of opinion that the execution was correctly directed to any constable, and that on a trial in the Circuit Court, the jury need not sign the verdict. The jury are only required to sign the verdict, where the trial is before the ministerial officer. Appeal dismissed.

Note. See Pearce et al. v. Swan, 1 Scam. 266; Arenz v. Reihle et al., Idem. 340; Grimsley et al. v. Klein, Idem. 343; Sheldon v. Reihle et al., 1 Scam.

HENRY TOWELL and ISAAC TOWELL, appellants, v.
EPHRAIM H. GATEWOOD, appellee.

Appeal from Pope.

In an action by G. against T., to recover for a breach of an alleged warranty of the quality of a lot of tobacco sold by T. to G., the plaintiff introduced in evidence the following bill of sale, to wit:

"NEW HAVEN, February, 1836. Mr. E. H. Gatewood bought of H. & I. Towell, 2,951 lbs. good first and second rate tobacco at $ 4,50, $132,794. Received payment by the hands of I. Kirkham, HENRY TOWELL, ISAAC TOWELL." He then proved by parol testimony that the tobacco was not good first and second rate tobacco, and there rested his case. The defendants then offered to prove by a witness who was present at the sale, the terms of the contract: Held that the proof was admissible, and that the bill of sale could only be regarded as a bill of particulars, and not as a warranty of the quality of the tobacco. It is essential to the validity of a warranty, that it should be made at the time of sale; or if made afterwards, that it be upon a new consideration.

In an action by the purchaser to recover the purchase money paid, or damages, on the sale of any article, on the ground that it is inferior in quality to what it was represented to be, it is necessary to allege and prove either fraud or an express warranty.

No particular words or form of expression is necessary to create a warranty, but there is a distinction as to the legal effect of expressions when used in reference to a matter of fact, and when used to express an impression or opinion. Where the representation is positive and relates to a matter of fact, it constitutes a warranty, as that a ship is an American or a French ship, or that the crew con