MIDLAND CONTRACTING CO. v. TOLEDO FOUNDRY & MACHINE CO., 154 F. 797

SEAMAN, Circuit Judge (after stating the facts). The contention that the trial court erred in upholding jurisdiction, when it appeared that both parties to the suit were nonresidents of the district, is untenable, in view of the general appearance of the defendant below, in open court, on March 15th, with an affidavit of meritorious defense and of need for further time to prepare for trial, and an application thereupon for extension of time to plead and for continuance of the cause.

This appearance was without qualification, and the plea in abatement was not filed until the following day, when leave was granted by the court to plead to the declaration. As the rule is well settled that the provision for suits to be brought in the district of the residence of one or the other party “does not touch the general jurisdiction of the court over such cause between such parties,” but “is a matter of personal privilege, which the defendant may insist upon, or may waive, at his election” (Interior Construction Co. v. Gibney, 160 U. S. 917, 219, 220, 16 Sup. Ct. 272, 40 L.

Ed. 401, and authorities cited), the appearance and applications referred to waived the objection subsequently interposed, and the plea was rightly overruled. The plaintiff in error appears to have rested on the jurisdictional plea, making no application for leave to plead to the merits or for other relief from the default thereupon entered, and the only remaining questions open to consideration are, whether the record authorizes the judgment as entered. Error is assigned of two classes:

(1) Want of timely service or sufficient declaration to authorize any default judgment in replevin; and (2) want of authority for assessment of damages by the court, without a jury. 1. The objections raised under the first-mentioned head are twofold :

(1) That the defendant below was not in default, under Practice Act Ill. c. 110, §§ 1, 8 (3 Starr & C. Ann. Ill. St. 1896, pp. 2977, 2989) ; (2) that the declaration is insufficient to support the judgment. Assuming (without so deciding), for the one proposition, that the sections referred to were operative in the trial court, neither

section impresses us as applicable to the case at bar.

Section 1 provides that the summons shall be returnable to the first day of the next term, except when sued out within 10 days of such term, and shall then be made returnable to the succeeding term.

Section 8 provides, when service cannot be made 10 days before the return day, and summons is served later, that “the defendant shall be entitled to a continuance, and shall not be compelled to plead before the next succeeding term.” The summons in suit was served December 1, 1905 and made returnable to the ensuing March term; so the fact of service appears within the terms and meaning of the statute. Any question of the regularity of such service is settled by the general appearance and not reviewable upon this inquiry.

The sufficiency of the declaration or record to support judgment in replevin is challenged, and we are of opinion that at least one ground is well assigned, namely, that there is no allegation of the right of the plaintiff therein to possession of the property. The declaration avers, not wrongful taking of the goods, but their wrongful detention by the defendant, for which replevin is authorized by statute in Illinois.

Section 1, c. 119, Rev. St. 1874; 3 Starr & C. Ann. St. p. 3373. While ownership by the plaintiff is alleged, there is no allegation of right of possession; and the action being possessory, not essentially determinative of title, the sole issue to be tried is the right of possession at the commencement .of the action. Cobbey’s Daw of Replevin, § 12; Reynolds v. McCormick, 62 Ill. 412, 415; Pease v. Ditto, 189 Ill. 456, 468, 59 N. E. 983.

Ownership in one person does not exclude right of immediate possession in another, and the mere allegation of title does not tender the issue of right of possession, where unlawful taking is not averred. Wheeler v. Train, 3 Pick. (Mass.) 255, 257; Gazelle v. Doty, 73 Ill. App. 406, 408. Under the well-settled rules that the declaration must allege facts which give a right of recovery — with no presumptions arising in favor of the pleader — and that “a default admits only the facts well pleaded” therein (Schueler v. Mueller, 193 Ill. 402, 404, 61 N.

E. 1044), the alleged fact of ownership does not, as we believe, authorize the judgment in replevin. With the premise conceded, in effect, that the possession of the defendant was originally lawful, the plaintiff can recover upon the strength alone of his immediate right thereto, and not upon defect in the adversaries’ claim. So neither the allegation of title nor that of unlawful detention presents the issue of immediate right of possession in the plaintiff, and default thereunder confesses no such fact. 2.

The further contention of error in the assessment of damages by the court, without a jury, is not deemed tenable, as such procedure is authorized, upon default, by

section 40 of the Illinois practice act (3 Starr & C. Ann. St. c. 110, par. 41, p. 3031). In Fidelity & Deposit Co. v. United States, 187 U. S. 315, 320, 23 Sup. Ct. 120, 47 L. Ed. 194, like provision is upheld as not infringing the constitutional right of trial of issues of fact by a jury.

Section 649, Rev. St. U. S. fl U. S. Comp. St. 1901, p. 525], which requires “a stipulation in writing waiving a jury,” to authorize trial of issues of fact by the court alone, is not applicable to default cases; and, no inconsistent provision appearing, conformity with the practice act of Illinois is authorized under

section 914, Rev. St. U. S. [1 U. S. Comp. St. 1901, p. 684], For the above-mentioned insufficiency of the declaration, we are of opinion that the judgment is unsupported; and it is reversed, accordingly, and the cause remanded for further proceedings in conformity with law.