Mitchell v. State

Fish, J.

Plaintiff in error was convicted, in the county-court, of obstructing legal process; and upon the hearing of his certiorari in the superior court, 'it was overruled; whereupon he excepted. The indictment seems to be for resisting an officer in completing a levy, but the case tried was for resisting an officer in delivering property sold under a levy. The accused acquiesced in the trial being conducted on this line, and makes no complaint thereon. The'bill of exceptions recites that the plaintiff in error, in his petition for certiorari, alleged that the county judge erred in rendering judgment against the accused, for the following reasons, to wit: “(1) Because there was no valid sale of said property levied upon, and that the sale being void there was no legal process under which the officer was acting. (2) That the sale of the property, if there was a legal sale, only passed such title as the defendant in execution had in said lumber, and not such as any other person had; and therefore the officer had no right to take property of the plaintiff in error, he not being defendant in execution, under which sale was had. (3) That said judgment was contrary to law and the evidence and opposed to the weight of the evidence.” As will be seen, the accused, in his first assignment of error presented in the petition for certiorari, distinctly recognized the levy as legal; and while he alleged that the sale was void, the averment was in the most general terms, with no reason indicated for its illegality. Such an indefinite statement as to its invalidity would cover failure to legally advertise, failure to carry the property to the place of sale, failure to sell at the right place, or at the right time, or any other possible objection to its legality. Therefore this first ground of error did not present to the superior court, with sufficient distinctness, any legal question for adjudication.

1. In view of the record then, we must consider that the lumber of the accused was regularly levied upon and sold at judicial sale, as the property of his brother, the defendant in execution. If so, it was the duty of the officer making the sale to deliver the lumber to the purchaser; and if, while he was proceeding to perform this duty, the accused obstructed, resisted and opposed the officer, then the accused was guilty of obstructing legal process. His remedy was the interposition of a claim in advance of the sale, or action of trover either before or after the sale.

2. The remaining assignment of error is sufficiently dealt with in the second headnote.

Judgment affirmed.

All the Justices concurring.