Berg v. Henry

1 Citing case

  1. Novak Food Service Equipment, Inc. v. Moe's Corned Beef Cellar, Inc.

    460 N.E.2d 443 (Ill. App. Ct. 1984)   Cited 3 times
    Reviewing the denial of replevin after a § 5/19-107 hearing

    • 1, 2 In a replevin action, a defendant may recoup or set off a sum owing to him or her from a plaintiff. ( Cottrell v. Gerson (1938), 296 Ill. App. 412, 428, 16 N.E.2d 529, aff'd (1939), 371 Ill. 174; Berg v. Henry (1956), 12 Ill. App.2d 226, 139 N.E.2d 179 (abstract).) The provisions of the Code are in consonance with the foregoing cases. Under section 1-108, article 2 of the Code regulates the procedure to be followed in article 19 of the Code within which the replevin statute is now situated, unless otherwise provided in article 19. (Ill. Rev. Stat. 1981, ch. 110, pars. 1-108, 2-101 et seq., 19-101 et seq.) Counterclaims are authorized under the Code, are governed under sections 2-608 and 2-614 thereof (Ill. Rev. Stat. 1981, ch. 110, pars. 2-608, 2-614), and are thus applicable here. Moe's counterclaim is not simply a setoff, but goes to the essence of Novak's right to replevy the chattels by virtue of its own alleged breach of the same sales agreement with which Moe's is charged with violating. It is germane, relevant and material to the principal issue raised and Moe's should have been permitted to submit evidence in its support at the preliminary hearing.