Horn v. Zimmer , 1913 Ill. App. LEXIS 778 ( 1913 )

Mr. Justice F. A. Smith

delivered the opinion of the court.

This writ of error brings before this court for review a judgment in a replevin suit in favor of the plaintiff below, defendant in error, Gustave Horn, against plaintiff in error as sheriff, who had .levied an execution issued in a certain suit of Fortune Bros. Brewing Company v. Adam Maurer and Eliza Maurer on certain saloon property.

The plaintiff’s evidence did not show or tend to show that the plaintiff had any right, title, special property, interest, or right of possession in the property levied oh, and the trial court should have sustained the defendant’s motion to dismiss at the close of plaintiff’s case. The plaintiff’s testimony shows that the property belonged to his brother William Horn, and that the plaintiff was managing the saloon as agent for him. The plaintiff therefore had no right to institute and maintain the action of replevin. Pease v. Ditto, 185 Ill. 317, 189 Ill. 456; Cobbey on Replevin (2nd) Sec. 150. This being so the plaintiff had no right or claim for damages against plaintiff in error for taking and holding the property under the execution, and the admission of evidence as to damages was erroneous. '

The judgment is reversed with a finding of fact.

Reversed with finding of fact.