Davis v. Taylor

Citations

• 41 Ill. 405

Syllabus

<p>1. Trover—may lie for a house. Where a house, as between the parties, was personal property, trover will lie for its wrongful conversion. As, where it was so erected as to be personalty, or where the defendant is estopped by his own acts from denying that it is such.</p> <p>2. Presumptions—from the want of a MU of exceptions. Where a declaration in trover alleges the property converted to have been personalty, and there was a verdict and judgment for plaintiff, and no bill of exceptions, held, that, in support of the verdict, the Supreme Court must presume the proof showed it was personalty.</p> <p>3. Husband and wipe—jointly Hallo for tort. A wife is liable jointly with her husband for a tort. Hence trover lies against both for a joint conversion. And this was the old rule at common law.</p> <p>4. Misnomer — waived ly pleading general issue. WTxere the defendant pleads the general issue in the right name, describing herself in the plea as sued by another name, she cannot raise the question of misnomer after verdict.</p> <p>5. So, where the summons and declaration were against Mrs. John C. Davis, who pleaded the general issue under the name of Christina Davis, describing herself as sued by the former name, she was not allowed after verdict to assign misnomer for error.</p> <p>6. Under such circumstances it was clearly proper to render judgment against said defendant under the name by which she had been brought into court, and described in the declaration.</p> <p>7. Judgment against — a part of several defendants—tort and assumpsit. The rule in assumpsit that final judgment against part of the defendants without disposing of the case as to the others, is error, has no applications to actions of tort, there being no contribution among wrong-doers. Hence, a judgment in trover against part of the defendants, amounts to a dismissal, as to the residue, and is not error.</p>