MacVeagh v. Bailey & Hanford

Phillips, J. By the provision of Sec. 11, Chap. 77, Starr & C. Ill. Stat., “The person in whose favor execution is issued, may elect on what property not exempt from execution he will have the same levied, provided personal property shall be last taken.” Under a statute almost the same as this the Supreme Court of this State held: “This provision is made for his benefit (the execution debtor), and he may waive any right under it. It is the duty of a sheriff before he proceeds to levy an execution, whenever practicable, to notify the defendant, and it then becomes the duty of the latter, if he claims the benefit of this statute, to furnish the officer with a description of his other property liable to sale on execution. If he has notice and fails to furnish such description, he must be considered as waiving his rights under the statute, and the sheriff may proceed to levy on any of his property not otherwise exempt from execution. If a sheriff levies upon the personal property or homestead of the defendant without giving him notice of the execution, the latter may still insist upon liis right to have the judgment satisfied out of his other property. But he must in such case furnish the sheriff with a list of that property at the earliest opportunity.” Bingham v. Maxey, 15 Ill. 290. While it is incumbent on the defendant in execution to give the officer having the execution a description of the property to be levied on, yet if the sheriff having the execution and the plaintiff in execution manifest a purpose and a determination to levy on personal property and exercise such haste in making the levy on personal property that time to furnish a description of real estate is not given to the defendant in execution after the notice and before the levy is made, it would not create a waiver of the right of the defendant in execution to have real estate first taken, and in such case the furnishing of a description afterward, within a reasonable time, would be sufficient. A preponderance of evidence here shows that the levy was made within a few minutes after the notice, and almost immediately after the defendant in execution, Bailey, said, “ There is no necessity of levying on the goods and shutting up our store, we have plenty of real estate,” designating the lot on which the store stands, the brick on the adjoining lot, the cooper-shop and residence in town, and the farms around town. Then, under this haste in levying on the stock of goods, with a refusal to accept real estate, the descriptions and abstracts being" made and tendered on the 24th of November following—from all these facts together, there accrued to appellees a right of action. The appellants, however, insist that, inasmuch as Kennedy was, on the first trial, acquitted, and no steps taken by appellees to have a new trial awarded as to him, no action can be sustained as to appellants, the plaintiffs in that execution, and the attorney who directed the levy. While Hamline and Kennedy both testify that there was no instruction not to levy on real estate, yet Kennedy testifies that he was instructed by Hamline, the attorney, “to levy on the goods if the execution was not paid,” and the weight of proof shows such to have been the instruction to the sheriff. Again, while going to appellees’ place of business to make the levy, Hamline telegraphed Franklin MacV eagh & Co. to wire Hartline to afford Hamline any security he could, and Franklin MacV eagh & Co. wired Hartline to that effect, and Hartline, when ITamline and the deputy sheriff called at his store, made out an indemnifying bond, which was delivered to the deputy, who, thereupon, went and made the levy, and when the execution was paid off in order to have the goods released, Franklin MacV eagh & Go. received the money. “ It is a general rule that when a sheriff or constable makes himself liable as a trespasser in the execution of a writ, all who direct, request, advise, aid or abet, are joint trespassers and responsible for all the damages. If a person sue out execution and give a bond of indemnity to the sheriff to induce him to sell the goods of another, that is a sufficient interference to subject him to an action; so, also, if he adopt the acts of the sheriff by receiving the goods or money.” Wolf v. Boettcher, 64 Ill. 316. The jury had sufficient evidence to find Franklin MaoYeagh & Go. and John H. Harnline guilty. It is insisted further, however, that the verdict was excessive. The store was closed from the 20th of ¡November to the 6th of December, provided the sale had been made without interruption by motion to quash. The motion to quash, however, was a right in appellees, and their action in assertion of that can not he regarded as an extension of the timo of closing the store beyond what was necessary to effect the sale of the stock of goods under the execution; but such sale was what appellees were endeavoring to prevent and had a right so to do, and in the assertion of such right of endeavoring to have execution and levy quashed, the store was kept closed until January 15th following. The jury also has the evidence as to the manner and extent of damage to the goods and of the injury to the credit of appellees. Accordingly, we see no reason to hold that the damage assessed was excessive, but we hold that the evidence appears to have warranted the damage as assessed. It is still further insisted that there is no evidence of malice on the part of appellants. It does not appear that vindicatory damages were assessed, and to recover actual damages it is not necessary to prove motive. We find no error in this record of which appellants can complain, and the judgment is affirmed. Judgment affirmed.