Western Union Cold Storage Co. v. Rose , 60 Ill. App. 452 ( 1895 )

Me. Justice Watermah

delivered the opinion of the Court.

The only proper use of an execution is to enforce the collection of the judgment upon which it is based, and to enforce this collection with considerable diligence.

An execution and its lien may be avoided by such conduct on the part of the plaintiff therein as shows legally improper use of the writ, though the motives influencing such conduct were not actually fraudulent, but grounded in kindness and charity to the defendant, and free from any intent to injure others.

A delivery of a writ to an officer with a manifest intent not to have him make a levy, is equivalent to no delivery and creates no lien.

The law gives to an execution upon its delivery to an officer a lien, because the law imposes upon the officer the duty of executing the writ without delay. If, therefore, the plaintiff in the execution relieves the officer from such duty, the lien of the execution, as against junior liens, is lost. Freeman on Executions, Sec. 206; Sweetser v. Matson, 153 Ill 568-582; Smith v. Erwin, 77 N. Y. 466; Gilmore v. Davis, 84 Ill. 589; Ala. Gold L. Ins. Co. v. McCreary, 65 Ala. 127.

It is true that in the present case the direction to the constable was only to use his discretion as to making a levy, and that he might, consistently with his orders, have levied upon the goods of the defendant, but he could also, in entire consistency with his instructions, have refrained from making a levy, and this he did. In other words, the plaintiff relieved the officer from the absolute duty to levy, making it a matter of discretion; in pursuance of which discretion no levy or attempt to levy was made until after the delivery of a junior execution to another officer. By such direction on the part of the plaintiff, Diedrieh, and such conduct on the part of his. officer, Shea, the lien of his execution was lost as against that of the writ thereafter issued and executed by the sheriff.

The order of the Circuit Court is therefore reversed.