T CAMMEYER v. DURHAM HOUSE DRAINAGE 00. 51
  T CAMMEYER v. Du1tnAn Hocsm DnAmAen Co. et al.
, V (Oheuit Court, N D. Illinoia. May 16, 1888.) A T
REPLEVIN—JUDGMENT-—AMENDMENT—RETURN or Prornnrv.
2 Starr &_C. St. Ill. p. 2016, c. 119, § 22, provides that "if the plaintiff in
an action of replevin fails to prosecute his suit with eifect, or su ers a non·
{suit or discontinuance, * * * judgment shall be given for the return of
the property and damages for the use thereof from the time it was taken un-
til a return thereof shall be made, unless the plaintiff shall in the mean time
i have become entitled to the possession of the property, when judgment may
A be given against him for costs and damages," etc., Held where, upon the case
r bein called for trial, plaintiff dismissed the suit, and the usual order was en-
1 'terecl simply adjudging that the cause be dismissed, and that defendant re-
cover his costs and have execution therefor, that the court had no power,
, after two full statute terms had passed, to enter judgment for a return of the ‘
property   _
_ At Law. On motion to amend judgment. °
J. E. Sleeper, for the motion.
Mr. Defreee, oemtm. h V 1
Br.o1>eE·r·1·,` J . This was an action of replevin commenced in this court
fora quantity of iron pipe, etc. The plaintiffs gave the usual bond to
the marshal, conditioned for the due prosecution of the suit and return
ofthe property, if return should be awarded; and the writ was duly ex-
ecuted by taking the property from the possession of the defendant and
delivering it to the plaintiff'. On the 14th day of April, 1886, when
the case was called for trial, the plaintiffs attorney dismissed the case,
and the usual order was entered when a plaintiff dismisseshis owncase,
simply adjudging that the cause be dismissed, and that defendantrecover
his costs from the plaintiff, and that he have execution therefor. The
Illinois statute provides (chapter 119, § 22:1)
"If the plaintiff in an action of replevin fails to prosecute his suit with
effect, or suffers a nousuit or discontinuance, or if the right of property is ad-
judged ngainst him, judgment shall be given for the return of the property,
and damages for the use thereof from the time it was taken until a return
thereof shall he made, unless the plaintiff shall in the mean time have become
entitled tothe possession of the property, when judgment may be given against
him for costs and damages. * * *" i ·
No judgment for a return of the property was rendered, and the de-
fendant now comes and moves the court for such judgment, and a writ of
retomo habendo, on notice duly served on the attorneys who brought the
suit. The attorneys so served protest that they are no longer attorneys
in the case, and submit that inasmuch as two full statute terms have
passed since the judgment of dismissal was entered, the court has lost
control of the record, and cannot now make any substantial change in it,
or render a, judgment for return of the property. e ,
‘ The case seems to be fully covered by the case of   v. Smokey, 72
..`¤2StarrS¤C.St. I11Q;p.2016.y_,   V l A _     , `.   i.