Bledsoe v. Ziegenhein Bros. Furniture Co. , 1911 Ill. App. LEXIS 707 ( 1911 )

Mr. Justice Duncan

delivered the opinion of the court.

The substance of appellant’s complaint on this appeal is that the court erred in making the order which it did make on said motion, because said minutes were and are erroneous and not sufficient to warrant such amendment. Technically speaking the court is not warranted in ordering issued the writ of retorno habendo until the formal order and judgment of the court is entered that the defendant recover of and from the plaintiff the property taken under the writ of replevin. Section 22 of chapter 119 of Hurd’s Eevised Statutes provides: “If the plaintiff in an action of replevin fails to prosecute his suit with effect, or suffers a non-suit or discontinuance, or if the right of property is adjudged against him, judgment shall be given, for a return of the property. * * * unless the plaintiff shall, in the meantime, have become entitled to the possession of the property, when judgment may be given against him for costs. ” We cannot go into the merits of the original suit as they are not presented by this appeal. No reason appears why the court was not warranted in entering up a judgment for the return to the defendant of the property. The real questions are, has-it entered up such a judgment by its amended record, and was it warranted in making such amendment under the evidence. The amended judgment “ordered and adjudged by the court that a writ of retorno habendo issue as the law directs for the return of the property mentioned and described in the writ of replevin.” We think this judgment is a sufficient judgment for the return of the property, although not put in the usual and best form for such judgments. Ordering and adjudging that a writ issue as the law directs (that is, as the statute directs) for the return of property implies the ordering and adjudging that such property be returned and that a writ issue for that purpose. The difference in such an order and an order that such property be returned to the defendant and that a writ of procedendo issue therefor, is only technical; and such technicalities are not now favored under section 3 of chapter 7 of our statutes which provides that no judgment shall be reversed in the Supreme Court for mere error in form. Similar judgments, though hardly so complete as the one before us, have been sustained as sufficiently formal and, in terms, as judgments that the property be returned. Those cases we are .inclined to follow and here cite them. McCrory v. Hamilton, 39 Ill. App. 490; American Preservers’ Company v. Bishop, 83 Ill. App. 493; Same v. Same, 88 Ill. App. 444. "We do not think that the .holding of the Supreme Court in American Preservers’ Company v. Bishop, 184 Ill. 68, goes to the extent of holding that such words as are found in the case before us are not equivalent to a judgment for the return of the property.

We are of opinion also that the motion to amend and the evidence in this record is amply sufficient to authorize the court to enter a judgment for the return of the property in question and to award a proper writ therefor. Where, in a court of record, a mistake has been made in the entry of a judgment, and there is a minute, entry, pleading or files in the cause, by which the court is able to see that the record, as made, does not correctly represent his actions, he has the power, at a subsequent term, to amend and correct such record in accordance with the facts so as to sustain the rights of .the parties. Denhard v. Dunbar, 98 Ill. App. 266; Harris v. Schilling, 108 Ill. App. 116. The fact that the court in its minutes awarded a writ of retorno habendo is sufficient evidence in our judgment to warrant any court in finding that the court in fact gave judgment that the property be returned. It is the only judgment in such a case that such a writ could properly follow. We have been cited to no case in which it has been held that proof that a court ordered a writ of retorno habendo for the return of the property replevied is not sufficient, in the absence of contrary evidence, to base a finding that the court rendered judgment for the return of such property. A number of Illinois cases seem to hold that such evidence is sufficient. Am. Preservers’ Co. v. Bishop, 83 Ill. App. 493; Same v. Same, 184 Ill. 68; and Fitzgerald v. Gore, 105 Ill. App. 242, which positively holds that such evidence is sufficient.

The judgment of the lower court is affirmed.

Affirmed.