Bank of Indiana v. Tremunde

Mr. JUSTICE GEORGE J. MORAN, dissenting:

Sam Brown, age 77, and Elizabeth Brown, his wife, lived on the Brown farm for 43 years prior to the time of the filing of this suit. Some time before the proceeding in this case they put this farm in the name of their son, Glenn K. Brown, and his wife with the further agreement that they retain a life estate in this property. This fact was verified by both Donald Tremunde and Glenn K. Brown.

On October 27, 1975, the bank sought and obtained a writ of replevin to procure pledged assets of the partnership from the Brown farm. Sam and Elizabeth were in possession of the farm and the goods and chattels taken at the time the writ of replevin was served and executed. As such they were necessary parties to the replevin suit. However, they were not made parties. This, then, was a proceeding against them and their property without authority of law.

Replevin is a proceeding by which the owner or someone who has a right to possession in the chattels seeks to obtain possession of the chattels. It is primarily a possessory action. Persons having possession of the goods or chattels sought to be replevied must be made parties defendant as this suit is maintainable only against those in actual or constructive possession.

Since Sam Brown and his wife were in quiet and peaceful enjoyment of their premises at the time their property was unlawfully invaded- by the agent of the Bank of Indiana, they have a valid cause of action for the invasion of their privacy. They would also have a cause of action for trespass.

The summary seizure of the property in question was also unlawful because it was based on a false affidavit and a wrongful order of a trial judge.

Section 4 of the Replevin Act (Ill. Rev. Stat. 1975, ch. 119, par. 4) provides in part:

“An action in replevin shall be commenced by the filing of a verified complaint which describes the property to be replevied and states that the plaintiff in such action is the owner of the property so described, or that he is then lawfully entitled to the possession thereof,® * *.”

Section 4a of the Act provides:

“The defendant shall be given 5 days written notice in the manner required by Rule of the Supreme Court, of a hearing before the Court to contest the issuance of a writ of replevin. No writ of replevin may issue nor may property be seized pursuant to a writ of replevin prior to such notice and hearing except as provided in Section 4b.”

Section 4b of the Act provides:

“Notice to the defendant is not required if the plaintiff establishes and the court finds as a matter of record and supported by evidence that summary seizure of the property is justified by reason of necessity to:

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(c) protect the plaintiff from an immediately impending harm which will result from the perishable nature of the disputed property under the particular circumstances at the time of the action;® * *.”

The plaintiff filed its verified complaint alleging:

“8. That it is necessary to protect the plaintiff from immediately [sic] and pending harm which will result from the perishable nature of the property described herein that the plaintiff has an immediate hearing without notice to the defendants, pursuant to the provisions of Chapter 119, Section 4B(c).”

The property to be seized was described in the complaint as farm machinery and equipment, beef cattle and stored grain and feed. These goods were not perishable. In Illinois Central R.R. Co. v. McClellan, 54 Ill. 58 , the court said at page 67:

“Perishable property, in the commercial sense, is that which, from its nature, decays in a short space of time, without reference to the care it receives. Of that character, are many varieties of fruits, flowers, some kinds of liquors, and numerous vegetable productions. But to say mature, merchantable com was of that character, would be a perversion of language. This clause does not, therefore, govern the loss in this case.”

Since the property seized was not perishable, the affidavit and complaint were not true, and resort to summary seizure was therefore illegal. The trial court had no jurisdiction to issue an order for a writ of replevin based on this affidavit and complaint; nor did the trial court hold a hearing as required by section 4b of the Replevin Act (Ill. Rev. Stat. 1975, ch. 119, par. 4b.) Able counsel in their brief say:

“Justice before the law is perhaps the highest principle of law and the greatest promise to men. Circumventing the law by verifying that farm machinery and cattle are perishable makes a mockery of the law and lays another millstone in the path of all who seek and believe in the convenant of equal justice under the law.”

I agree.

The order of the trial court was illegal for another reason. Section 4c of the Act provides:

“At the hearing on the issuance of the writ of replevin, which may be a hearing to contest pursuant to notice under Section 4a or an ex parte hearing pursuant to a finding under Section 4b, the court shall review the basis of the plaintiff’s claim to possession. If the plaintiff establishes a prima facie case to a superior right to possession of the disputed property, and if the plaintiff also demonstrates to the court the probability that he will ultimately prevail on the underlying claim to possession, the court shall so find as a matter of record and a writ of replevin shall issue on the order of the court.”

Prior to issuance of the order of replevin, the trial court did not find of record that the plaintiff had met its burden of proving that it had a superior right to possession of the disputed property nor did the court find of record that the plaintiff had demonstrated to it that the plaintiff would ultimately prevail on the underlying claim to possession. Replevin is a statutory proceeding and must be strictly followed. O’Toole v. Klimek Boat & Engine Works, 24 Ill. App. 2d 111 (1960), 164 N.E.2d 253 .

Elizabeth testified that she was 70 years old and lived on the Brown Farm. The trucks were there for three hours or more. “I walked the floor and cried. I worried about Sam. I was afraid he would have a heart attack. I didn’t sleep that night worth anything and the next day and night I became sick at my stomach and started vomiting and kept on all the rest of the day and into the night. Wednesday morning I had to call the doctor. I went to the doctor and he put me in the hospital and I was there two weeks.” She testified, “I’ve been awfully nervous and embarrassed and feeling ashamed being out to meet people about what had happened. Every time it comes up and anything mentioned it upsets me and makes me sick.”

Sam testified he had lived on the Brown farm for 43 years and that he was 78 years old. The property belonging to him was taken away that night. “I took six heart pills that night under my tongue. I took them because I was hurting in my heart and chest and up and down my arms and throat.”

Sam and Elizabeth Brown have been wronged by the illegal action of the plaintiff in this case. They should have their remedy in our courts. Instead of affirming the trial court in this case, we should reverse and remand for a trial on damages alone.