delivered the opinion of the court.
Zimmer v. Cummings, 202 Ill. App. 18 (1916)
Nov. 14, 1916
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Illinois Appellate Court
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Gen. No. 21,712
202 Ill. App. 18
Michael Zimmer, Sheriff, for use of Sterling B. Cramer and C. A. Mullen, Defendant in Error, v. John P. Cummings, Trustee, and Joseph T. Delfosse. Joseph T. Delfosse, Plaintiff in Error.
Gen. No. 21,712.
(Not to he reported in full.)
Error to the Municipal Court of Chicago; the Hon. Sheridan E. Pry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
Reversed and remanded.
Opinion filed November 14, 1916.
Statement of the Case.
Action by Michael Zimmer, sheriff of Cook county, for the use of Sterling B. Cramer and C. A. Mullen, plaintiff, against John P. Cummings, trustee, and Joseph T. Delfosse, defendants, in the Municipal Court of Chicago, to recover on a replevin bond on which defendant Joseph T. Delfosse was surety. To reverse a judgment for plaintiff, defendant Joseph. T. Delfosse prosecutes this writ of error.
*19The action in which the bond sued on was given was against Anton J. Cermak, bailiff of the Municipal Court of Chicago, to recover possession of an automobile which said Cermak held by virtue of an execution and levy against defendant John P. Cummings, as the individual property of said Cummings and to satisfy a judgment against him. It was admitted that the replevin action was not determined upon the merits. A document was offered in evidence by defendant Joseph T. Delfosse, and excluded by the court, as follows:
“Chicago, May 14,1913.
“Received of Joseph T. Delfosse one Premier automobile, model 45, serial No. 2004, six cylinder, in trust, to be returned on or before ninety days after date.
(signed) John P. Cummings.”
Testimony of defendant Delfosse to a similar effect was stricken on plaintiff’s motion.
George L. Schein and Walt A. Hansen, for plaintiff in error; George L. Schein and. Leo H. Hoffman, of counsel.
Bryan, McCormick & Wilbur and Defrees, Buckingham & Eaton, for defendant in error; H. H. McCormick and Don Kenneth Jones, of counsel.
Abstract of the Decision.
Replevin, § 204 * —when surety on bond may show right of possession in plaintiff in replevin. In an action against a surety on a replevin bond, where the merits of the replevin action have not been determined in the action in which the bond was given, it is error to exclude evidence that the plaintiff in the replevin action *20held title to the property replevied, an automobile, as trustee for defendant, since the right to prove such fact in such case is expressly given to defendant by the Replevin Act, sec. 26 (J. & A. If 9211), and it is therefore essential that defendant be allowed to prove, by competent evidence, that plaintiff in the replevin action was entitled to the possession of the replevied property as trustee or bailee for defendant.