¶1This was debt upon a replevin bond, prosecuted by appellee for the use of Fietsam, administrator of Margaretha Albert, deceased, against appellants. Fifty acres of wheat in shocks had been replevied by Ledford and Deppe, two of the appellants, and as the merits of the case had not been tried in the replevin suit, appellants claimed said Ledford and Deppe were the owners of the wheat, and entitled to its possession. A judgment in favor of appellee for $600 debt, and for $360 damages, was the result of a jury trial. Appellants asserted the property had belonged to one Jacob Albert, husband of said Margaretlia, and was levied on and sold under an execution against him, and purchased by said Ledford and Deppe. It devolved on them, in order to support such title, to show a valid judgment and an execution issued thereon. The evidence showed a judgment by default, before a justice of the peace, on the 17th day of November, 1877, against said Jacob, for $108. 76, and costs; and it also appeared by the return of the constable the summons was served on the 15th day of November, 1877. The statute requires that a summons issued by a justice shall be served at least three days before the trial; and when it appears a trial was had upon a shorter notice than that, unless there was an appearance by the defendant, the justice will have failed to acquire jurisdiction of his person, and any judgment rendered against him will be absolutely void, and may be questioned in any other proceeding, direct or collateral. R. S. 1874, Ch. 79, § 17; Johnson v. Baker, 38 Ill. 99. Herein the title of appellants failed.
¶2It was not error in the county court to refuse the motion of appellants to give leave to constable Muench to amend his return upon the summons issued by the justice of the peace in the suit in which the judgment was entered against Jacob Albert. After an officer has made Ms indorsement upon a writ and returned it to the office out of which it issued, and it has become a part of the files and record of the court, he should only change his indorsements upon the writ by permission of the court. Nelson v. Cook, 19 Ill. 441. The fourth section of the statute of Amendments and Jeofails provides that all returns by any sheriff or other officer to any court may be amended in matter of form, or according to the truth of the matter, by the court to which such returns shall be made, in its discretion, as well before as after judgment. We know of no authority vested in the county court to authorize an amendment to the return of an officer made upon a writ issued out of and returned to another and different tribunal, in a' suit between othér parties, which has been finally disposed of in the latter tribunal. ISTor do we think it was error in the. court to refuse to admit in this collateral proceeding oral testimony to change and contradict the return of the officer as it appeared indorsed upon the summons. The court properly overruled the objection made to the competency of Jacob Albert to testify in behalf of the administrator of his deceased wife. The litigation was concerning the separate property of the wife, and the surviving husband was a competent witness. R. S. Ch. 51, § 5; Funk v. Eggleston, 92 Ill. 531.
¶3Appellants offered to prove by one Frederick Slipper that the sole object of the conveyance of the tract of land on which the .wheat was grown, from Jacob Albert to him, and from him to Margaretha Albert, was to delay and hinder creditors of said Jacob Albert, including the plaintiff in the execution upon which the sale was made. They also -offered to prove by Amelia Albert that a certain chattel mortgage given by Jacob Albert to her husband was made with the same sole object.
¶4The court sustained objections to this evidence and refused to allow the witnesses to testify. If the witnesses knew as a matter of fact, the object of these several deeds, we see no good reason why they might not testify in relation thereto. '
¶5The evidence shows that the execution against Jacob Albert was levied on the wheat, and that Margaretha gave the constable notice to try the right of. property, and it is urged that thereby she acknowledged the regularity of the proceedings before the justice, and admitted the validity of the judgment. We do not regard Dexter v. Parkins, 22 Ill. 146 and Thompson v. Wilhite, 81 Ib. 356, as applicable to the case at bar. The notice given by Mrs. Albert was disregarded by the officer, and no trial of the right of property was had. Had there been such trial, then the notice, for the purposes of the trial, would have admitted the validity of the execution and antecedent proceedings against the defendant in the execution. But we do not understand such notice admits the validity of the judgment in any other or subsequent suits or proceedings. It appears the wheat was sold on the execution, and after satisfying it, there was a surplus of $33.80, which was paid over by the constable to the justice. This surplus the justice afterwards paid to Fietsam, the administrator of Margaretha Albert.
¶6We do not consider the plaintiff is estopped by the receipt and retention of this money from recovering damages for a failure to return the property, on the theory it was a ratification of the constable’s sale. The uncontradicted testimony of, the administrator is that he had no knowledge from what source this $33.80 came. However, it is evident that in any event this amount should be deducted from the value of the wheat. The administrator could not retain this surplus for which the wheat sold, and at the same time recover the full value of the wheat. The court instructed the jury that if they found the plaintiff was entitled to recover, then they should assess by way of damages the full value of the property replevied. This was error.
¶7The judgment is reversed and the cause remanded.
¶8Reversed and remanded.