Pearce v. Swan
| Decision Date | 31 December 1836 |
| Citation | 1 Scam. 266,1836 WL 2340,2 Ill. 266 |
| Parties | JESSE PEARCE and LAVINA SHARP, plaintiffs in error,v.ALEXANDER SWAN, defendant in error. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
THIS cause was heard in the Court below at the April term, 1835, before the Hon. Alexander F. Grant.
JESSE J. ROBINSON, for the plaintiffs in error, cited Acts of 1835, 56; R. L. 538-9 (Gale's Stat. 587-8); Breese, 3, 32, 142.
H. EDDY, for the defendant in error.
The facts of this case are, that an execution was issued by a justice of the peace to a constable in favor of Pearce and Sharp, the plaintiffs in error, against the goods and chattels of Lewis, Prickett and McMurtry, and was levied on sundry articles of personal property. Subsequent to the levy, Swan served a written notice on the constable that the property levied on in favor of John Pearce, Jesse Pearce and Lavina Pearce, executors of Wm. Sharp, deceased, was the property of said Swan and forbade the sale. Upon the receipt of this notice the justice who issued the execution issued a precept to summon a jury to try the right of property between Swan, the claimant, and Jesse Pearce and Lavina Sharp, the plaintiffs in the execution. The cause was tried before the justice, constable and jury, on the 13th day of May, 1834. Swan appeared before the Court and jury as claimant of the property, and Jesse Pearce and Lavina Sharp as plaintiffs in the execution. On the trial the jury found a verdict against the claim of Swan, who thereupon appealed to the Circuit Court of Gallatin county and executed the appeal bond on the 14th day of May, 1834. At the September term of the Gallatin Circuit Court the appeal was continued. At the April term, 1835, the parties appeared and the cause was tried by a jury, who returned a verdict that the property belonged to Alexander Swan; and thereupon the Circuit Court rendered judgment, “That the property be retained by the said Swan and that he recover his costs against the said defendants.”
To reverse the judgment of the Circuit Court a writ of error has been brought to this Court. The errors relied on are: 1st. That the notice given by Swan to the constable alleges that the property claimed by him had been levied on by an execution in favor of John Pearce, Jesse Pearce and Lavina Pearce, instead of an execution in favor of Jesse Pearce and Lavina Sharp. 2d. Because the appeal bond was not executed on the day the trial was had before the justice of the peace, constable and jury. 3d. Because it is uncertain against whom the judgment is given. These errors will be noticed in their order. The Court are of opinion that the (R. L. 537; Gale's Stat. 586), passed 29th July, 1827, does not require the claimant, in the notice he serves on the constable, to state on whose execution the levy had been made. It is sufficient to notify the constable that he claims the goods levied on, forbids the sale and intends to prosecute his claim. Anything more was surplusage and could not vitiate the notice, particularly as no objection was made to the notice before the justice and constable.
Had Pearce and Sharp objected that the notice was insufficient to compel them to litigate the right to levy on the goods, the only effect of such an objection would have been a dismissal of the proceedings and then the claimant could have given a new notice. This objection is in the nature of a plea in abatement and according to the case of Conley v. Good (Breese, 96), ought to have been made before the justice and constable. No objection having been raised either before the justice and constable or in the Circuit Court, it is now too late and consequently can not be assigned for error.
The second assignment of error presents some difficulty. By an examination of the appeal bond contained in the record it appears that the trial before the justice, constable and jury, was had...
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