Shimp v. Hay , 1880 Ill. App. LEXIS 297 ( 1881 )

Pillsbdey, J.

The only question argued by counsel is whether the execution upon which the sheriff seized the goods was void. The statute relied upon by appellee as rendering the writ void is § 82 of the Practice Act of 1872, as follows: “ When an appeal or writ of error shall be prosecuted from a judgment, order or decree to the Supreme Court or Appellate Court, and such appeal or writ of error is dismissed, * * * upon a copy of the order of the Supreme Court or Appellate Court, as the case may be, being filed in the office of the clerk of the court from which the case was originally removed, execution may issue, and other proceedings be had thereon in .all respects as if no appeal or writ of error had been prosecuted.

The facts agreed show that the appeal had been dismissed by this court before the execution issued,.the judgment of the -court below was, therefore, at the time the writ was issued, in full force and effect, as the dismissal of the appeal operated as a technical affirmance of the judgment. The statute quoted does not, in our opinion, make an execution void that is issued after the dismissal of the appeal, even if no order of the Appellate Court be filed in the court below evidencing the action of the court in dismissing the appeal or affirming the judgment, but rather that it prescribes the necessary acts to be done by the appellee to entitle him to the writ of execution as a matter of right. At most, the issuing of the writ before filing the order was but an irregularity of which no one but the defendant therein could take advantage. Wilkinson’s Appeal, 65 Penn. St. 190; Jackson v. Bostlett, 8 Johns. 365; Bacon v. Cropsey, 7 N. Y. 199.

Admitting the execution to have been prematurely issued, it was not void, and being regular upon its face was a sufficient justification for the officers proceeding under it, and cannot be attacked collaterally. Stewart v. Stocker, 13 S. & R 199; Lynch v. Kelley, 41 Cal. 232; Allen v. Portland Stage Co. 8 Greenl. 209; Blaine v. Ship Carter, 4 Cranch, 333; Carson v. Walker, 16 Mo. 85. The property in question at the time of the issuing of the execution, and the levy thereon, being the property of the defendant in execution, and it having taken no steps to quash the writ in a direct proceeding, we must hold that, as the writ was not void, the judgment of the court below should have been for the defendant.

The judgment of the court below will be reversed and the cause remanded.

Judgment reversed.