Opinion
Opinion filed February 12, 1930.
1. DAMAGES — inadmissibility of evidence of increased weight of hogs at conclusion of replevin suit in action on bond. In an action on a bond for the replevin of hogs it is error to admit evidence of the increased weight of the hogs at the conclusion of the replevin suit since, in legal effect, the hogs are converted at the time they are taken under the writ of replevin.
2. DAMAGES — breach of bond for replevin of hogs. The proper measure of damages for a breach of a bond for the replevin of hogs is their value at the time they were taken with interest at the rate of 5 per cent per annum from the date they were taken under the writ until the trial of the action upon the replevin bond.
3. REPLEVIN — sufficiency of evidence of value of property in action on bond. In an action on a bond for the replevin of hogs, a recital in the affidavit for the writ of replevin that the hogs were of the value of a certain sum is prima facie evidence of their value which becomes conclusive when no other evidence of the value is offered.
4. APPEAL AND ERROR — affirmance on condition of filing remittitur. On appeal from a judgment for the plaintiff in an action on a replevin bond the court, on finding that the damages are susceptible of computation and are excessive, may affirm the judgment upon condition that a remittitur of the excess amount is filed.
Appeal from the City Court of East St. Louis; the Hon. SILAS COOK, Judge, presiding.
FELSEN KANE, for appellants.
McHALE McHALE and DAN McGLYNN, JR., for appellee.
Appellee recovered a judgment in debt for $1,200 and damages $988 in an action on a replevin bond executed by appellants. On March 31, 1928, Frank Bihss filed an affidavit for the replevin of 25 hogs from Lee Horn. In that affidavit he stated that the hogs were of the value of $600. The trial of the replevin suit resulted in a verdict and judgment in favor of Horn. The hogs were never returned and this suit was brought upon the replevin bond.
Upon the trial of this case appellee proved that the hogs weighed about 200 pounds each at the time they were taken under the replevin writ and that they would, in the usual course, weigh 400 pounds each on December 13, 1928, which was the date of the conclusion of the replevin suit; that on the last mentioned date such hogs were worth $7.60 per hundred pounds. The evidence was received over the objection of appellants and they contend that it was error. The court was clearly in error in admitting this evidence. In legal effect the hogs were converted at the time they were taken from Horn under the writ of replevin. We are satisfied that the proper measure of damages was the value of the hogs at the time they were taken, with interest at the rate of 5 per cent per annum from the date they were taken under the writ until the trial of the case upon the replevin bond; Sturges v. Keith, 57 Ill. 451.
Appellee offered in evidence the affidavit filed by Bihss for the writ of replevin in which he stated that the hogs were of the value of $600. That was at least prima facie evidence of the value of the hogs, and no evidence having been offered to the contrary, it became conclusive; Martin v. Hertz, 224 Ill. 84. Appellants offered no evidence. Appellee proved, without objection, that the reasonable attorney's fee for the trial of the replevin suit was $250. No complaint is made in this court as to the amount of the attorney's fee. The sheriff's return shows that the hogs were taken from Horn on April 2, 1928, and delivered to Bihss. In the state of the proof appellee was entitled to recover $600 with interest at the rate of 5 per cent per annum from April 2, 1928 until June 4, 1929, the date of the trial in the present suit. That amounts to $635.17, to which should be added the attorney's fee of $250, making a total of $885.17. That amount is $105.83 less than the damages allowed in the trial court. If appellee will file a remittitur of $102.83 within 15 days from the date of the filing of this opinion, the judgment will be affirmed, and in that event appellee will pay the costs in this court and appellants will pay the costs in the trial court. If the remittitur is not filed then the judgment will be reversed and the cause remanded at the costs of appellee.
Affirmed on filing a remittitur; otherwise reversed and remanded.