Snydacker v. Brosse
| Decision Date | 30 September 1869 |
| Citation | 99 Am.Dec. 551,51 Ill. 357,1869 WL 5343 |
| Parties | GODFREY SNYDACKER, Impleaded, etc.v.SARAH BROSSE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Chicago.
The opinion states the case.
Messrs. ROSENTHAL & PENCE, for the appellant.
Mr. A. N. WATERMAN, for the appellee.
It appears that appellant, in July, 1868, recovered a judgment, before a justice of the peace, for $100, against appellee and one Richards. An execution was issued thereon, and in September of that year, Comfort, a constable, and one of the defendants below, levied the execution upon a portion of appellee's household goods, and took charge of them. Appellee was, at the time, conducting business as a feme sole, lived alone, and as an unmarried woman, and acquired the property levied upon, while thus living separate and apart from her husband, with whom she had not lived for about two years. They, it seems, had ceased to live together by mutual consent.
After the levy was made she filed an affidavit before a justice of the peace, in which she claimed the goods belonged to her husband, and caused them to be replevied in his name, and Snydacker and Comfort were made defendants. On a trial of that case a judgment was rendered in favor of the defendants, and the goods ordered to be returned, and a writ was issued therefor. Comfort took the writ, went to the house, and carried away the property levied upon, and some articles which had not been seized on the execution. Some two or three days after the goods were removed under the writ of retorno habendo, appellee's attorney called upon Snydacker, who compromised his judgment by receiving $80, and then giving an order on Comfort to return the property to appellee, which he did, except a blanket and a comfort, which it is claimed were taken but not returned.
It appears that the constable used great expedition in executing this writ, only a few hours intervening after the rendition of the judgment in the replevin suit, until he had, in the absence of appellee, entered her house and seized the goods and carried them away.
It is claimed that Comfort executed the writ in the most reckless manner, after entering the house, by handling the goods in a rough and improper manner, and carrying them away exposed to a severe rain, whereby they were greatly injured; also, that he forced open an outer door, or a window, to effect an entrance. There is evidence tending to prove that this writ was executed in the manner charged, and the jury have so found. It also appears, from the quantity of household property removed, that her business of a boarding house keeper was suspended.
To recover damages for the wrongful entry into the house, and the abuse of power, if any was possessed, by Comfort, after making the entry, this suit was brought, and on a trial in the court below, the jury found a verdict for $900 damages, from which Snydacker has prosecuted this appeal.
The defense interposed was, the general issue, and a justification under the original writ of fieri facias, and the writ of retorno habendo.
It is a uniformly recognized rule of the common law, that no officer has the legal authority to break an outer door, or other outside protection to an individual's house, for the purpose of executing civil process. Even to arrest a defendant on civil process, the officer must corporally seize or touch the defendant's body, and thus render him a prisoner, before he can justify the breaking and entering the defendant's house to retake him; otherwise he has no such power, but must watch his opportunity to arrest him; for every man's dwelling house is looked upon by the law as his castle of defense and asylum, wherein he should suffer no violence. 3 Black. Com. 288. And in the execution of civil process against the goods of a defendant, an officer is equally powerless to force an entrance into the house of the defendant for the purpose of seizing them. Blackstone says, a sheriff may not break open any outer doors to execute either a fieri facias or a capias ad satisfaciendum; but he must enter peaceably, and may then, after a request and refusal, break open any inner doors belonging to the defendant, in order to take the goods. 3 Bl. Com. 417. And what is said of these writs is believed to be true of all civil process; and it follows, that the writ of retorno habendo conferred no right on any constable to break an outer door or a window to effect an entrance into appellee's house. On a warrant for the arrest of a person charged with a felony it is otherwise, as the officer may then break open doors, if necessary, to make the arrest. 4 Bl. Com. 292.
In this case, however, there is a fatal objection to the justification, by Comfort, under the writ of retorno habendo, as it was in favor of himself and Snydacker. We are aware of no case in...
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Ogden Bldg. & Loan Ass'n v. Mensch
...authority and to the better reasoning upon the point. Nor can such view be harmonized with the ruling of this court in Snydacker v. Brosse, 51 Ill. 357, 99 Am. Dec. 551, and O'Conner v. Wilson, 57 Ill. 226, that an officer cannot legally perform the merely ministerial act of executing proce......
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Casselman v. State
...acting was but a civil process, and did not authorize him to force the outer door of a dwelling. 2 Freem. Ex'ns. Section 256; Snydacker v. Brosse, 51 Ill. 357; note to McGee v. Givan, 4 Blackf. 16; Curtis v. Hubbard, 4 Hill. 437. In actions of replevin a sheriff may, under our statute, (Rev......
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Kothe v. Krag-Reynolds Company
...be made before an officer wholly disinterested. This court has decided that an officer cannot execute process in his own favor. Snydacker v. Brosse, 51 Ill. 357. reason for this prohibition will apply with equal force to the taking of an acknowledgment." Herman on Chattel Mortgages, lays do......
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Gonsouland v. Rosomano
... ... 212, 7 L.J. (C.P.) 85; Railroad Co. v. Hardware Co., ... 143 N.C. 54, 55 S.E. 422; Page v. Cushing, 38 Me ... 523, 527; Snydacker v. Brosse, 51 Ill. 357, 99 ... Am.Dec. 551. An action for the malicious abuse of lawful ... process, civil or criminal, will lie, although the ... ...