Hogue v. Corbit

• Decision Date: 14 June 1895
• Citation: 156 Ill. 540,41 N.E. 219
• Parties: HOGUE v. CORBIT.
• Court: Illinois Supreme Court

156 Ill. 540

41 N.E. 219

HOGUE

v.CORBIT.¹

Supreme Court of Illinois.

June 14, 1895.

Appeal from circuit court, Union county; J. P. Robarts, Judge.

Ejectment by Emma E. Corbit against L. P. Hogue. Plaintiff obtained judgment. Defendant appeals. Affirmed.Crawford & Dodd, for appellant.

Karraker & Lingle, for appellee.

BAKER, J.

This is ejectment for 80 acres of land, prosecuted in the Union circuti court by Emma E. Corbit, appellee, against L. P. Hogue, the appellant. A trial resulted in judgment for the former, and from that judgment this appeal was taken. The parties claim from a common source of title,-one Edwin W. Thornton. On November 15, 1887, appellee sued out of said circuit court a writ of attachment against the real and personal estate of said Thornton, returnable to the March term, 1888, of said court. Upon the same day the sheriff levied the writ upon the land in controversy, and filed a certificate of the levy with the recorder of the county. At the March term, 1888, the cause was continued. There was personal service on Thornton to the September term, 1888, and he filed pleas. A trial was had at the March term, 1889, upon the issued joined between the parties to the attachment suit, and a judgment was rendered in favor of appellee and against Thornton for $1,091.66 and costs. The title of appellee exhibited in this ejectment suit is based on a sale made in satisfaction of that judgment. Appellant relies upon alleged defects in the attachment suit and proceedings, and upon a title which has its origin in a deed from Edwin W. Thornton to his brother, Richard Thornton, which was acknowledged before a notary public on November 18, 1887, and filed for record on that day.

The statute (Rev. St. c. 11, § 9) provides that when a writ of attachment is levied on real estate a certificate of the levy shall be filed with the recorder of the county where the land is situated, and that such levy shall take effect, as to creditors and bona fide purchasers without notice, from and after the filing of the same, and not before. Here, as we have already seen, the attachment writ in the suit against Edwin W. Thornton was levied on the land, and a certificate of the levy filed with the proper recorder on the 15th day of November, 1887, whereas the deed from said Thornton was not filed for record until the 18th day of said November, which was three days after the lien of the attachment levy had become effective. It is urged, however, that on account of various alleged irregularities and defects in the attachment proceedings the levy in the attachment suit never did become a lien, or, even if it did, was not so availed of in the subsequent proceedings as to accrue to the benefit of appellee by means of the sheriff's deed that was afterwards executed to her. The objections insisted upon in that behalf are quite numerous. The affidavit for attachment was very manifestly defective, and not in conformity with the requirements of the attachment act. It did not state the nature of the indebtedness for which the suit was brought, nor did it state either the place of residence of the defendant, or that it was not known, or that the plaintiff, upon diligent inquiry, had not been able to ascertain the same. It did state, however, the names of the parties, the amount of the indebtedness after allowing all just deductions, that the defendant had concealed himself so that process could not be served upon him, and that the plaintiff did not know his whereabouts and post-office address. The statute expressly makes provision for the amendment of affidavits for attachment. Here it is evident that there was an attempt to comply with the requirements of the statute, though some of these were omitted and others defectively stated. The affidavit, under the statute and under the doctrine of Booth v. Rees, 26 Ill. 45, and other cases, was clearly amendable. The validity of the writ depended upon the validity of the affidavit; and the affidavit, it being amendable, was voidable merely, and not void. Bassett v. Bratton, 86 Ill. 152. The affidavit, the writ, and the levy of that writ gave the court jurisdiction over the subject-matter of the attachment. A thing that is voidable has force and effect, but, in consequence of some inherent quality or defect, it is liable, upon proper steps being taken, to be legally annulled or avoided. But the steps to avoid it must be taken by the proper party, and by means of a direct attack upon it. Here Hogue, the appellant, was a stranger to the attachment suit, to the affidavit and the writ that was levied, and to the judgment that the court, with full jurisdiction of both the subject-matter and the parties to the litigation, afterwards rendered; and he cannot, in this collateral action, call in question and impeach this writ and affirdavit, which are not null and void, but endowed with force and vitality. See Durham v. Heaton, 28 Ill. 264, and authorities there cited. In the case just named this court said that acts done under erroneous or voidable process are binding and cannot be successfully assailed, except by a direct proceeding.

It is urged that no valid levy of the attachment writ was made on the land, because neither the levy indorsed on the writ nor the certificate of levy filed states whose property was levied on. The levy made by the sheriff was as follows: ‘By virtue of the within writ of attachment, I have levied on the east half of the northeast quarter of section twelve (12), township twelve (12) south, range one east of the third principal meridian, Union county, Illinois, November 15th, 1887.’ The command of the writ to the sheriff was that he should ‘attach * * * the estate, real or personal, of the said Edwin W. Thornton,’ to be found in his county. And the sheriff made return that by virtue of that writ of attachment he had levied on certain designated property. He had no authority, under the writ, to levy upon any property other than that of said Thornton, and it would have been a violation of official duty, and a tort, for him to have done so. The rule is that, where the legality of the acts of a public officer are brought collaterally in question, he is presumed to have done his duty. People v. Auditor of Public Accounts, 2 Scam. 567;Harlow v. Birger, 30 Ill. 425;People v. Newberry, 87 Ill. 41. And see, also, Ballance v. Underhill, 3 Scam. 453;Lieb v. Henderson, 91 Ill. 282; and People v. Walsh, 96 Ill. 232. There is no express requirement in the statute that the return shall state in terms that the property levied upon is the property of the defendant in attachment. Rev. St. c. 11, §§ 8-10. While it is the better practice that it should appear in words from the return that the property attached was the property of the defendant, or levied upon as his property, yet the omission of such express words would not-at all events, in a collateral suit-invalidate a title the basis of which is the levy.

The concluding portion of the indorsement made and...