Hackett v. Jones, 34 Ill. App. 562 (1890)

Feb. 4, 1890 · Illinois Appellate Court

34 Ill. App. 562

Rose L. Hackett v. George W. Jones.

Replevin—Pleading—Form of Verdict—Award of Writ of Retorno Habendo Unauthorized.

1. In replevin against a sheriff, for property levied on by him, where the pleas are non eepit, non detinet, property in another and special pleas, a verdict of not guilty is responsive to the pleas of non eepit and non detinet only and does not warrant an award of a writ of retorno habendo.

2. Judgment can not be entered on a verdict finding on part of the issues and silent as to others.

[Opinion filed February 4, 1890.]

Appeal from the Circuit Court of Crawford County; the Hon. Wm. C. Jones, Judge, presiding.

This is an action of replevin brought by appellant against appellee, who is the sheriff of Crawford county, Illinois, to recover certain property levied on by him as such sheriff.

To the plaintiff’s declaration the defendant filed ¡deas of non eepit, non detinet, property in Charles FT. Hackett, and filed special pleas in which the recovery of five separate judgments against Charles FT. Hackett is alleged, and issuing executions thereon, which came to the hands of appellee as sheriff, and by him levied on the property in declaration described as the property of Charles FT. Hackett. The verdict of the jury was not guilty.

Judgment was entered thereon and writ of retorno habendo awarded.

Messrs. Callahan, Jones & Lowe, for appellant.

Messrs. Robb & Bbadbebby, for appellee.

Phillips, J.

The pleas of non eepit and non detinet admit the property in plaintiff, and put in issue the taking and detention only. The verdict of not guilty was responsive only to the pleas of non oepit and non detinet. Hanford v. Obrecht, 38 Ill. 493; Bourk v. Riggs, 38 Ill. 320; Underwood v. White, 45 Ill. 437; Ingalls v. Bulkley, 15 Ill. 224.

There was no finding as to the six special pleas, and it was error to enter judgment on a verdict finding on but part of the issues, and silent as to others. Vase et al. v. Hart, 12 Ill. 378; Nelson v. Bowen, 15 Ill. App. 477; Mattson v. Hirsch, 5 Ill. App. 104.

The verdict of not guilty does not authorize the awarding of a writ retorno hdbendo. Hanford v. Obrecht, supra.

Humerous other questions of law and fact are presented by this record which we deem it unnecessary to consider, as, for' the errors indicated, the judgment must be reversed and the cause remanded.

Reversed and remanded.