Callahan v. Beaver , 146 Ill. App. 123 ( 1908 )

Mr. Justice Ramsay

delivered the opinion of the court.

Curtis Callahan brought suit in replevin in the County Court of Moultrie county against George Beaver to recover possession of a frame building, ten by twelve feet in size, and some household goods contained therein. Trial was had before a jury and a verdict returned in favor of Beaver. Judgment was entered upon the verdict and Callahan appealed.

In the declaration filed by Callahan it was expressly charged that Beaver had wrongfully taken the property from the possession of Callahan and wrongfully detained the same from him and upon these charges alone the issues were closed and trial had. The burden of proof was therefore upon Callahan to show that Beaver’s action in taking the property was wrongful, or that at the time of suing out the writ of replevin he was wrongfully detaining it.

The evidence does not sustain Callahan upon either of these issues and as no demand was made for a return of the property before suit was commenced, no verdict in Callahan’s favor could have been sustained.

From a careful review of the evidence, it would seem that the building and its contents stood upon an acre of ground owned or claimed by one Jeff Williams, from whom Beaver leased the land. Beaver, in order to plant the field, moved the building by the permission or direction of Williams, to another piece of land across the road. At the time of the removal of the building no one objected to what Beaver did or notified him to desist and -on the following morning Callahan said to Beaver that he did not care what he did with the property, that it was nothing to him.

The evidence shows no wrongful taking or wrongful detaining by Beaver, and as no demand was made for a return of the property the judgment must be and is affirmed.

Affirmed.