Leonard v. Dillon

• Decision Date: 30 March 1874
• Citation: 76 Pa. 44
• Parties: Leonard <I>versus</I> Dillon <I>et al.</I>
• Court: Pennsylvania Supreme Court

Page 44

76 Pa. 44

Leonard versus Dillon et al.

Supreme Court of Pennsylvania.

March 25, 1874.

March 30, 1874.

March 25th 1874.

Before AGNEW, C. J., SHARSWOOD, MERCUR and GORDON, JJ. WILLIAMS, J., at Nisi Prius

Error to the Court of Common Pleas of Clearfield county: Of January Term 1873, No. 135.

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W. A. Wallace, for plaintiff in error.—An execution on a judgment appealed from is no protection to the constable: O'Donnell v. Mullin, 3 Casey 199. An execution issued within the period of a stay of execution is a nullity: Milliken v. Brown, 10 S. & R. 188. An officer is not protected if he has notice that the justice had not jurisdiction, although the process may show on its face that he had jurisdiction: 2 Hilliard on Torts 185; McDonald v. Wilkie, 13 Ill. 22, 602; Barnes v. Barber, 1 Gilm. 401; Parker v. Smith, 1 Id. 411; Whipple v. Kent, 2 Gray 410. The constable was liable for executing the process after the issuing of the certiorari: Belshaw v. Marshall, 4 B. & Ad. 336; Williams v. Stewart, 12 S. & M. 533.

J. B. McEnally, for defendant in error.—Whenever the subject matter is within the jurisdiction of the justice, and the writ is regular on its face, the constable is safe in obeying its command, no matter what his own opinion may be: 2 Hilliard on Torts 184, et seq. A constable may justify under an execution, although irregular: Paul v. Vankirk, 6 Binney 123; Moore v. Allegheny, 6 Harris 58; Cunningham v. Mitchell, 17 P. F. Smith 81; Billings v. Russell, 11 Harris 192; O'Donnell v. Mullin, 3 Casey 202.

Judgment was entered in Supreme Court, March 30th 1874.

PER CURIAM.

The execution being regular on its face, and the justice having jurisdiction, the constable was protected by the writ notwithstanding the judgment before the justice was superseded by the appeal. The mistake or even the wilful wrong of the justice in issuing the execution, reciting the superseded judgment as in full force, could not affect the constable, who could know nothing except what he saw on the face of his writ. Having an execution regular in all appearance, he cannot be placed in the embarrassing position of refusing to execute it, by a mere notice from the defendant that he has taken an appeal. The only notice the officer is bound to regard, is one proceeding from the same authority that issued the writ. It is the province of the justice to determine whether the appeal is regularly taken, and if so to countermand the execution; if he have...