Burgett v. Gilbert , 1903 Ill. App. LEXIS 452 ( 1903 )

Mr. Presiding Justice Waterman

delivered the opinion of the court.

This is an appeal from a judgment rendered in an action of debt brought upon a replevin bond running to James H. Gilbert, as sheriff, and signed by appellants.

In the action of replevin, under the writ therein issued, there was taken by Gilbert, as sheriff, from the possession of John A. Bogers, five barrels of whisky owned bv him.

November 27, 1894, on motion of an attorney for the defendants therein, the replevin suit was dismissed for want of prosecution at plaintiff’s costs, and it was ordered that a writ of retorno habendo issue for the return of the property replevied. None of the property having been returned, December 20, 1898, suit was brought by James H. Gilbert, sheriff, for use of John A. Bogers, against the principal and sureties<upon the replevin bond.

February 14, 1902, action upon the bond coming on for trial, was submitted to the court, jury being waived, whereupon, after hearing evidence, the court found the issues for the plaintiff, debt, $1,200, plaintiff’s damages, $975, and thereupon judgment against appellants was rendered for debt, $1,200, damages, $975, and costs, debt to be discharged on payment of damages and costs; from which judgment an appeal to this court was taken.

It is urged by appellants that the action brought by Gilbert being for the use of John A. Bogers, John A. Bogers is the real plaintiff and must be so considered, and only nominal damages should have been awarded to him

In support of their contention in this regard, appellants introduced evidence showing that after, upon the writ of replevin, the whisky was taken from John A. Bogers, he ascertaining that it had been taken to the place of business of one Heffron, and being informed that he, Heffron, was acting as the agent of one Thomas, brought an action of assumpsit against Thomas and Heffron for the value of this whisky; that upon the trial he dismissed his action against Thomas and recovered a judgment against Heffron for over $800, no part of which judgment has ever been satisfied.

The statement in the declaration filed in the action upon the replevin bond that the suit brought by Gilbert is for the use of Bogers, was, so far as the present proceedings are concerned, inconsequential. Gilbert was the actual and nominal plaintiff. His right to recover upon the replevin bond was the question presented to the court. The statement, “for the use of John A. Bogers,” in no way affected the right of recovery and is of no consequence in this appeal. Schott v. Youree, 142 Ill. 283; Stevison v. Earnest, 80 Ill. 513; Atkins v. Moore, 82 Ill. 240; Wheat v. Bower, 42 Ill. App. 600; Chapin v. Matson, 37 Ill. App. 257.

Under the evidence in the case, no other judgment than that given by the court could have been rendered, and it is affirmed.