Schroeder v. Walsh
| Decision Date | 31 December 1881 |
| Citation | 10 Bradw. 36,10 Ill.App. 36 |
| Parties | JOHN SCHROEDERv.THOMAS WALSH. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Grundy county; the Hon. FRANCIS GOODSPEED, Judge, presiding. Opinion filed January 19, 1882.
Mr. P. A. ARMSTRONG, Mr. L. H. BISBEE and Mr. S. W. MUNN, for appellant; that the circumstances in the case raise a strong inference of fraud, and that fraud may be implied from the facts, cited Carter v. Gunnels, 67 Ill. 270; Strauss v. Kranert, 56 Ill. 254; Cool v. Phillips, 66 Ill. 216; Reed v. Noxon, 48 Ill. 323; Bullock v. Narrott, 49 Ill. 62; Bryant v. Simonean, 51 Ill. 324; Bowden v. Bowden, 75 Ill. 143.
Messrs. JORDAN & STOUGH, for appellee; that the verdict of the jury will not be disturbed unless it is manifestly against the weight of evidence, cited Malburn v. Schreiner, 49 Ill. 69; Hartley v. Hartley, 49 Ill. 302; C. B. & Q. R.R. Co. v. Gregory, 58 Ill. 272.
The bills of sale by which the corn in question was attempted to be transferred were void as against appellee: Thornton v. Davenport, 1 Scam. 296; Rhines v. Phelps, 3 Gilm. 455; Burnell v. Robertson, 5 Gilm. 282; Ketchum v. Watson, 24 Ill. 592; Bay v. Cook, 31 Ill. 336.
Where the instructions taken together fairly announce the law, a new trial will not be granted: Warren v. Dickson, 27 Ill. 115; Van Buskirk v. Day, 32 Ill. 260; Morgan v. Peet, 32 Ill. 281; Yundt v. Hartrunft, 41 Ill. 9; Ill. Cent. R. R. Co. v. Swearingen, 47 Ill. 206; Durham v. Goodwin, 54 Ill. 469; Lawrence v. Hagerman, 56 Ill. 68.
The sheriff can not justify under a writ served by his deputy without showing the authority of such deputy: Slaughter v. Barnes, 3 A. K. Marsh. 412; State Bank v. Curran, 10 Ark. 142; Land v. Patterson, Minor, 14; 1 Greenl'f's Ev. 36.
An officer can claim nothing for himself by virtue of his office, unless he holds de jure: The People v. Weber, 86 Ill. 283; Same case, 89 Ill. 347.
The subject of this controversy is a stock of goods in store, which appellee, as purchaser from Ward and Pierce, replevied from appellant, who justified the taking as sheriff, under a writ of attachment against them. It is clear from the whole record, that the real issue was whether the alleged sale to the plaintiff was fraudulent and void as against creditors of the vendors, and to it the proofs and instructions on both sides were mainly directed. The replications indeed also traversed the official character of the defendant, and the alleged delivery to and levy by him of the writ of attachment; but on the trial it was formally admitted that he was sheriff de jure, and the writ and return thereon, offered by him, were received and read in evidence over an objection by plaintiff, which was general only.
This return was signed in the name of the defendant as sheriff “by C. W. Card, deputy,” of whose appointment and qualifications, no other evidence was offered, and the court, at the instance of the plaintiff, gave among others, the following instruction:
5. “The Court instructs you, that although you may believe from the evidence in this case that the defendant, Shroeder, was the sheriff of Grundy county, Illinois, at the time the goods in question were seized by virtue of the writ of attachment in this case, yet if said writ was not delivered to Shroeder as such sheriff, and was not levied by him, but was in fact delivered to and levied by one C. W. Card, such writ affords no justification to the defendant, unless you believe from all the evidence that said Card, at the time said writ was levied, was a deputy sheriff of said county; and, before you can find that he was such deputy, the evidence must show that the sheriff appointed Card as such deputy; which appointment must have been in writing and signed by the sheriff; and the evidence must also show that after such appointment, before such deputy entered upon his duties, he took and subscribed an oath or affirmation in like form as required by the sheriff, and filed the same in the office of the county clerk of said county.”
A verdict was returned for the plaintiff, on which judgment was entered and the defendant appealed. The instruction so given in effect reversed the ruling previously made, by which the writ and return were received in evidence. If properly admitted, they were to be considered as just what they appeared and purported to be, and being so considered, they were not only competent, but indispensable, as being the primary evidence of certain material facts averred in the plea of justification of which the instruction virtually says there was none whatever, namely, that the defendant, as sheriff, had a valid warrant to take the goods of Ward and Pierce, and that by virtue thereof he had, through his deputy, taken the goods in controversy as their...
To continue reading
Request your trial