Appeal from the Circuit Court of McHenry County. No. 01-LA-15. Honorable Michael J. Sullivan, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
Plaintiff, Edwin Gunn, brought a two-count complaint, sounding in replevin and conversion, against defendant, Leorraine "Lee" Sobucki, seeking possession of a collection of coins. Following a bench trial, the court found in favor of Gunn and granted a judgment of possession and a writ of replevin. The court denied Sobucki's posttrial motion, and this appeal followed. Gunn cross-appealed, seeking a judgment of approximately $5,000 for some coins allegedly missing from the collection. We reverse and remand this cause for a new trial.
This case involved a coin collection that had been in the possession of Sobucki's husband, Robert Sobucki, from approximately October 1979 until his death in 1998. It was undisputed that Robert received the collection from Gunn. However, Robert's method of acquiring the collection was disputed. Gunn alleged that Robert was merely holding the collection on Gunn's behalf. Sobucki alleged that Robert purchased the collection from Gunn. In April 2000, Gunn requested the return of the collection from Sobucki, who inherited Robert's property under his will. Sobucki refused to give the collection to him. This cause was then filed.
Sobucki first contends that the trial court erred in allowing Gunn to testify in violation of the Dead Man's Act (Act), which provides in part:
"In the trial of any action in which any party sues or defends as the representative of a deceased person or a person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability ***[.]
(b) 'Representative' means any executor, administrator, heir or legatee of a deceased person ***." 735 ILCS 5/8--201 (West 2002).
The Act bars only that evidence that could have been refuted by the decedent. Smith v. Haran, 273 Ill. App. 3d 866, 875 (1995). The trial court's ruling on an evidentiary ruling is a matter of discretion, and this court will not reverse such a ruling unless the court abuses that discretion. Smith, 273 Ill. App. 3d at 875.
Among the evidence admitted in this case was a document that read as follows:
"Chicago, Illinois, October 5, 1979.
For and in consideration of the sum of $30,000.00 (THIRTY THOUSAND DOLLARS) and other good and valuable consideration, receipt of which is herein acknowledged, I hereby sell, transfer and assign all of the coins and bills, stamps and cachets, contained in my coin, ...