Stevison v. Earnest

Citations

• 80 Ill. 513

Syllabus

<p>1. Record—what is pa/rt of. The papers of a cause, when filed, under our statute, become a part of the record, and transcripts are made by copying files and the orders of court as entered of record by the clerk.</p> <p>2. Records—proof of, in different courts. While it is improper in the clerk of a coral to allow the records or files in a cause to be taken from his custody to be used in the courts of a different county, yet if they are produced in another court and identified, they are admissible in evidence.</p> <p>3. Pleading and evidence—variance. Where a declaration upon a replevin bond alleged that, the replevin suit coming on for trial, it was considered and adjudged that the plaintiff take nothing by his suit, and that the court awarded a return of the goods, etc., and gave judgment for the defendant thereon against the plaintiff for one cent damages and costs of suit, and the record produced showed simply a dismissal of the suit for failure to give security for costs and judgment for costs and return of the property: Held, that the variance was not material.</p> <p>4. Where an instrument in writing or a record is not the foundation of the action, a variance is not material, unless the discrepancy is so great as to amount to a strong probability that it can not be the instrument or record declared on.</p> <p>5. Replevin bond—of the declaration. The material facts to be alleged in a declaration on a replevin bond are, the termination of the replevin suit, and judgment for costs in the defendant’s favor, and the order for the writ retorno hábendo. It is wholly unimportant what led to that result, or in What phraseology it was declared.</p> <p>6. Same—right to question judgment in suit on bond,. A plaintiff in replevin, by suffering his suit to be dismissed, loses all right to contest the claim of the defendant in replevin to the property except that given him by the statute, which is to plead and prove his title to the property in mitigation of damages. He c