Becker v. Quigg

Citations

• 54 Ill. 390

Syllabus

<p>1. Lost execution—proof of search therefor—ex pai'te affidavits. Upon trial of an application for assignment of dower, in behalf of a widow whose husband derived title to the premises as purchaser at a sale thereof under execution, which was alleged to have been lost, and could not be found, it was held, the ex parte affidavits of the clerk of the court from which the execution was issued, and of the widow and administratrix of the sheriff who made the sale, were not admissible in evidence to prove that proper search had been made for the lost execution, with the view to lay the foundation for secondary evidence. The persons making such affidavits were competent witnesses, and should have been called to testify before the court in respect to the fact sought to be proven.</p> <p>2. The rule which, from necessity, allowed a party to a suit, when he was not a competent witness, to make an ex pa/rte affidavit as to the loss of a paper, so as to permit secondary evidence of its contents, has no application to third persons who are competent to testify, and where there is no statute authorizing their ex parte affidavits to be used for that purpose.</p> <p>3. Execution docket—what it may properly contain. In the book which clerks of the circuit courts are required to keep, for the purpose of entering therein the returns of. the sheriffs or coroners, of all executions, it is proper the column for the entry of the return should be preceded by columns for the names of the parties, the kind of process, date of execution, when returnable, and amount of debt and costs.* </p> <p>4 Same—when admissible in evidence. Where an execution has been lost, and it becomes necessary to prove that it was issued, a transcript from the execution docket is admissible as tending to prove that fact, and the entries preliminary to the return, and which are necessary to an understanding of the last entry, constitute evidence to be considered, with all the other evidence on the subject.</p> <p>5.