Weber v. Hertz , 1899 Ill. App. LEXIS 458 ( 1900 )

Mr. Presiding Justice Horton

delivered the opinion of the court.

Counsel for appellants, in his printed argument, makes this statement, viz.:

“ At the outset we desire to call the court’s attention to the fact that it appears from all the testimony, uncontradicted, that Franz J. Weber paid $1,000 to become a copartner of Albert Zacharias, on or before the 5th day of Hovember, 1891.”

The material issue is whether or not said second bill of sale is fraudulent and void as against judgment creditors of said Zacharias. The case was tried by the court without a jury, and the finding of the court was against the validity of said second bill of sale. It is not necessary to here formally review at length the testimony upon this question. The trial court saw the witnesses and heard them testify. The finding is not so against the weight of evidence as to justify a reversal of the judgment on that ground.

The second bill of sale being set aside as to the judgment creditors of Zacharias, then, as to such creditors, the interest of appellant Weber in the property levied upon, as stated by his counsel, was that of a copartner; apparently all of .the property of the partnership was levied upon. It seems to be conceded by counsel that such is the fact. In such pase, and as to such property, replevin can not be maintained by one partner against an officer making a levy upon the interest of the other partner. (James v. Stratton, 32 Ill. 202; Wells on Replevin, Secs. 166 and 167.) Ho question is presented here as to the rights of firm creditors.

We do not find from the abstract when the judgment was entered in this case. But we see that December 2, 1898, and after the entry of judgment the court entered the following order, viz.:

“ The cause coming on'again to be heard, the court, on his own motion, orders that the sheriff of Cook county hold whatever sum of money is collected on the judgment and execution issued in this cause until the 2d day of January, A. D. 1899, or until the further order of this court, in order to allow the said defendant, Franz J. Weber, to file a bill in equity to determine his interest, if any, in the money so collected, and to apply for an injunction or such other relief as he may be entitled to in the premises, to which said action of the court in the premises the said plaintiff, by his counsel, then and there duly excepted.”

It thus appears that the trial court held that replevin would not lie at the instance of said Weber to recover said property from the sheriff, and that the court sought to so rest the case by staying the payment of the money in the hands of the sheriff that appellant Weber could have the opportunity to proceed in a court of chancery to determine his interest, if any, in the property sold, or the proceeds thereof. That may have been done, so far as appears from this record.

Under the practice and statutes in this State, when a replevin suit is dismissed or the plaintiff therein takes or suffers a non-suit, he may show, in defense of a suit upon the replevin bond, such facts as would establish his right to maintain the suit in replevin. But if it appear in a suit upon such bond that the replevin suit could not have been successfully prosecuted, then the prima faoie right to recover upon said bond is established. As above shown, appellant Weber could not have maintained his said suit in replevin. There being no other defense made to the suit upon said replevin bond it follows that appellee should recover.

The judgment of the Circuit Court is affirmed.