Schneider v. Burke , 1898 Ill. App. LEXIS 858 ( 1899 )

Mr. Justice Freeman

delivered the opinion of the court.

According to the statement of appellees' counsel in his brief, the only question in dispute was the issue raised by the pleas alleging that the property in question was the property of George Diehl, against whom the execution ran,, under which the levy was made.

Appellant introduced in evidence a note for $1,000, made by George and'Marie Diehl, payable to one Robert Berger, the chattel mortgage securing the same upon the property in controversy, and the bill of sale conveying the property to appellant, as the highest bidder therefor at public auction, under the chattel mortgage sale. Evidence was then introduced tending to show that appellant immediately took possession of the property so purchased by her, and moved it into a house of her own; that Mrs. Diehl and her daughters, their home being thus broken up, were permitted to go there, and that George Diehl and his son were living elsewhere at the time. This certainly made out a prima facie case in favor of appellant’s right to the possession of the property. This evidence was not rebutted nor in any way denied. Appellee Burke testified that when he made the levy Mrs. Diehl said she was the owner of the property, and one of his appraisers who was with him corroborates him in this. They are contradicted in this respect by Mrs. Diehl’s daughter. But assuming that Mrs. Diehl did make such statement, it is difficult to see how it tended to prove title in George Diehl, the husband, against whom alone the execution ran. That there was an actual change of possession and an open transfer of the property to appellant's possession is manifest from the uncontradicted evidence, and there is no evidence whatever in the record tending to show that it belonged to or was in the possession of the execution debtor, George Diehl.

The point is made by appellant that the execution under which the levy was made was issued by the justice of the peace the same day upon which he entered judgment, and there is no evidence that the party applying for the same made oath, as required by statute, that he believed the debt would be lost unless execution issued forthwith. Without such oath, the statute forbids the issue of execution by a justice of the peace in a civil case until after the expiration of twenty days. There are no presumptions in favor of such an act of a justice of the peace, whose jurisdiction is inferior and limited. But it is not now necessary to consider in this case the effect of an execution so prematurely issued.

The judgment of the Circuit Court must be reversed and the cause remanded,