Kantzler v. People ( 1882 )

Wilson, J.

The liability of the obligors in the bond in suit is claimed by virtue of section 121 of the act concerning justices and constables. That section provides that “If any constable shall fail or neglect to return an execution within ten days after its proper return day, or if the demand, debt or claim be wholly or in part lost, or if any special damage shall arise to any party by reason of the neglect or refusal to act, or the misfeasance or nonfeasance of any constable in the discharge of any official duty, the party aggrieved may have his action in any court of competent jurisdiction, against such constable and his sureties, on the official bond of such constable, and shall recover thereon the amount of said execution and costs, with interest from the date of the judgment upon which the original execution issued.”

To create a legal liability there must be a valid execution. It is incumbent on the party suing, to make out his case, and to do this he must produce the execution or show its contents after preliminary proof of its loss, or inability to obtain it. Without an examination of the execution or knowledge of its contents, its-validity can not be determined. If the writ is void, the constable is not bound to o'bey it, and has no right to levy on property by virtue of it, nor is he under any legal obligation to return it. Putnam v. Traeger, 66 Ill. 90.

Here no execution was offered in evidence, and we are of. opinion that the proof fails to show that any valid execution was issued. The most that can be claimed for the evidence relied on to show the issuing of an execution, is that a paper purporting to be an execution was made out and came into the hands of the constable, under which he seized and sold. " some of the property of the Planing Machine Company. All this may have happened under an execution which was void, and which would be seen to be so if the execution were produced for inspection, or its contents shown.

Justice Sheridan testified that he had no recollection of the execution in question, but that if he issued one, as shown by his docket, it must have been in the usual form, and if in the usual form, it must have been a valid execution. But he does not attempt to state its contents, nor as to the contents of an execution made out in what he calls the usual form. In short, there was no evidence as to its contents. His opinion that it was a valid execution can not be substituted for the judgment of the court, upon an inspection of its contents. The case falls directly within Putnam v. Traeger, supra.

The judgment of the court below must be reversed, and the cause remanded for a new trial.

Reversed and remanded.