Gates v. People of State
| Decision Date | 30 June 1880 |
| Citation | 6 Ill.App. 383,6 Bradw. 383 |
| Parties | DARIUS B. GATES ET AL.v.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of LaSalle county; the Hon. GEORGE W. STIPP, Judge, presiding. Opinion filed June 17, 1880.
On the 26th day of June, A. D. 1879, an execution was issued out of the Circuit Court of LaSalle county, in favor of George H. Locey, as trustee for Eva Scherzer, and against Charles A. Scherzer, for $9,944.40, damages and costs of suit. This execution was based upon a judgment confessed on said day by Scherzer, the said Eva, the beneficiary therein, being his wife. The sheriff of LaSalle county, R. C. Stevens, received the writ the day of its date, and immediately proceeded and levied the same, as he claims, upon the stock of goods of the defendant, consisting of a general assortment of watches, clocks and jewelry. These goods were not removed by the sheriff from the store where Scherzer carried on his business, but were, as the sheriff alleges, left by him in custody of one A. J. Nichols, who was employed by Scherzer as a jeweler. The back part of the room was also used by one Collins for the purpose of storing musical instruments, and after the alleged levy the room was left open for business purposes upon the part of Nichols and Collins.
This store room was leased by Scherzer of the appellant Gates, for a monthly rent of $62.50, and on the second day of July, six days after the levy by the sheriff, Gates issued his distress warrant for the sum of $125, being rent then due for the two months ending on that day, and delivered the warrant to the appellant Murtha, as his bailiff, for execution. The appellants then went to the store and removed a portion of the goods claimed to have been levied upon by the sheriff.
The sheriff thereupon filed his affidavit and that of the custodian Nichols, in the circuit court, and asked a rule upon appellants to show cause why they should not be punished for a contempt of court, and make return of the goods taken upon the distress warrant.
In answer to the rule entered upon such application, the appellant Gates presented his affidavit, setting forth the above facts regarding his claim for rent, and further alleged that the sheriff had not made any valid levy, in that he had not removed the goods from the demised premises; and further, that the confession of judgment by Scherzer in favor of Locey for the benefit of the wife of Scherzer, was fraudulent, and made to hinder and delay his creditors; and that upon making the levy under the distress warrant, he had caused a copy of the warrant and inventory of the goods taken to be immediately filed in the office of the clerk of the circuit court of said county.
The court, after admitting testimony upon the hearing, tending to contradict the affidavits filed by the appellants, in answer to the rule to show cause, adjudged the respondents to be guilty of a contempt of court; ordered them to make return of the goods to the sheriff, and each respondent to pay one half the costs to be taxed. From these orders of the court the respondents appealed to this court. Mr. R. D. MCDONALD, for appellants; that the officer claiming to act as sheriff, it devolves upon him to show that he was an officer de jure before he can rightfully hold the property against any but the defendant, cited Schlencker v. Risley, 3 Scam. 483; Outhouse v. Allen, 72 Ill. 529; Gilligan v. Stevens, 4 Bradwell, 401.
The sheriff must recover upon the strength of his own title, not upon the weakness of his adversary's: Davison v. Waldron, 31 Ill. 120.
The proceeding by attachment for contempt, cannot be sustained in this case: People v. Church, 2 Wend. 262; Haines v. Haines, 35 Mich. 138; State v. Stuart, 7 Iowa, 502.
The landlord's lien attaches when the tenant takes possession, and continues until the rent is paid: Drane v. Garretson, 24 Iowa, 352; Acker v. Witherell, 4 Hill, 122; O'Hara v. Jones, 46 Ill 288.
The levy was insufficient: Minor v. Herriford, 25 Ill. 344; Beckman v. Lansing, 3 Wend. 446; Haggerty v. Wilber, 16 Johns. 228; Westervelt v. Pickney, 14 Wend. 123.
The confession of judgment was fraudulent, and the court will not aid the parties in their fraud: Miller v. Marckle, 21 Ill. 152; Nellis v. Clark, 20 Wend. 24; Kerr on Fraud and Mistake, 293; Webster v. Reed, 11 How. 437; Carpenter v. Hart, 5 Cal. 406; Easter v. Minard, 26 Ill. 494.
The sheriff must show the execution was based upon a valid judgment: The People v. Neill, 74 Ill. 68; Johnson v. Holloway, 82 Ill. 334; 2 Grenl. Ev. § 629.
The order committing for contempt is uncertain and void: Albany City Bank v. Schermerhorn, 9 Paige, 371; The People v. Piepenbrink, 12 Chicago Legal News, 41.
Messrs. LOCEY & EVANS, for appellee; that the possession of the sheriff cannot be interfered with, cited Herman on Executions, 246; In re Cunningham v. Cent. Law Jour. Sept. 1879.
Goods seized under an execution cannot be distrained for rent: 1 Brown & Hadley's Com. 476; Milliken v. Selge, 6 Hill, 623; Noe v. Gibson, 7 Paige, 513; Union Bank v. Clossey, 11 Johns. 183; Pierce v. Scott, 4 Watts & Serg. 344; 4 Wait's Actions and Defenses, 267.
The landlord's lien extends only to rent due before the levy: Trappan v. Mosie, 18 Johns. 1; Haskins v. Knight, 1 Maule & S. 245.
The court has authority to order return of the goods, and to punish by contempt a failure to comply with the order: Knott v. The People, 83 Ill. 532; The People v. Neill, 74 Ill. 68.
The order of committal was interlocutory, and no appeal will lie: Rev. Stat. Chap. 110, § 68; R. & M. R. R. Co. v. Trust Co. 70 Ill. 249; Gage v. Eich, 56 Ill. 297.
It is insisted by counsel for appellees, that goods taken in execution are in custodia legis, and not subject to distraint, and any one interfering with them renders himself subject to the summary proceeding had in this case; and several cases are referred to as sustaining this position. The cases referred to are where a court of equity, in the exercise of its extraordinary jurisdiction, by a judicial order appoints some person as a receiver to take possession of the property involved in the litigation for the purpose of its preservation, until it can be determined in due course of the proceedings who is equitably entitled to the property. The officer thus appointed by the court, and subject to its control in all things relating to the fund or other property placed in his charge by an order authorizing him to take the property preliminary to the final action of the court disposing of it, is necessarily entitled to the protection of the court...
To continue reading
Request your trial
-
United Transfer, Inc. v. Lorence
...reliance on authority reflecting that contempt may arise from attempting to take property from an officer's possession ( Gates v. People, 6 Ill.App. 383, 386 (1880) (sheriff did not remove seized jewelry from store, but left it in custody of debtor's employee; third party entered the store ......
-
Temple v. the People
... ... , and that he relied upon such examination, etc.It is thus seen that he relied upon his own examination of the books to inform himself of the state of the title to the lots in question, and we think that as he was looking to find if any incumbrances existed thereon and the recorder had a safe and ... ...