Boggess v. Pennell

Mr. Justice Wall. This was an action of replevin. Judgment was for the defendant. The appellee, being sheriff of Greene County, received an execution issued out of the Circuit Court of said cpunty, dated March 26, 1891, for $435.37 and costs of suit, in favor of Joseph K. Sharon against John D. Boggess, the appellant. On the following day he wrote to the appellant, as follows : Carrollton, Ills., March 27, 1891. Mr. John Boggess, White Hall, Ills. Sir: I have in my hands execution in favor of J. K. v Sharon v. you, for four hundred and forty-four and 72-100 dollars. What have you to say in regard to it, as the law compels us to make a demand on you for that amount % Yours respectfully, J. Gr. Pennell, Sheriff. By B. Gr. Bobinson, Deputy. The appellant replied as follows í March 28, 1891. Mr.' Pennell : I received your letter to-day. All I have to say is I have nothing to say. I suppose you have to make your proper demand. I am ready to schedule what little I have, and that ain’t a very long job. I have got nothing to turn out. John D. Boggess. This reply was received by appellee the day of its date. Appellant failed to present a schedule to the appellee, and on the 25th of May, 1891, the latter levied upon the property in question, for which the appellant brought the present action of replevin. The only question is whether the sheriff gave the debtor such “notice of the execution” as the law requires, and thereby was devolved upon the debtor the necessity of making the statutory schedule in order to avail himself of the benefit of the act concerning exemptions, etc. Sec. 2 of the act provides : “ Sec. 2. Whenever any debtor, against whom an execution, writ of attachment or distress warrant has been issued, desires to avail himself, or herself, of the benefit of this act, he or she shall, within ten days after notice of the execution, attachment or distress warrant, make a schedule of all his or her personal property of every kind and character, including money on hand and debts due and owing to the debtor, and deliver the same to the officer having the execution, writ of attachment or distress warrant, which said schedule shall be subscribed and sworn to by the debtor, and any property owned by the debtor and not included in said schedule shall not be exempt as aforesaid.” This section does not provide any particular mode of giving notice. The object, of course, is to insure the debtor ample time within which to make out and present his schedule. It is urgfed, however, that the law intends the officer shall personally demand payment of the execution, and that this is the notice the law requires. In general, where notice is required by statute or by rule of court, and the method of serving the same is not laid down, it is understood there shall be personal service. Wade on Notice, Sec. 1334; C. & A. R. R. Co. v. Smith, 78 Ill. 96. By Par. 19, Chap. 53, relating, to fees and salaries, the sheriff is authorized to charge “ for service of notice of execution * * * seventy-five cents and mileage five cents each way.” Here there seems to be a distinct legislative recognition of the proper mode of giving notice of the execution. We believe that it has been the uniform practice to serve notice in this personal way before making a levy whenever it is practicable to do so. Of course, if the debtor is not in the county, or conceals himself, or avoids the officer, a different question would be presented. Here the defendant lived a few miles from the county seat, and there was no difficulty in personal service. That such personal service is essential whenever practicable has beeri clearly held or recognized by the Supreme Court in Pitts v. Magie, 24 Ill. 613; Rock v. Haas, 110 Ill. 528; Finlen v. Howard, 126 Ill. 291; Davis v. Chi. D. D. Co., 129 Ill. 191. But conceding for the argument that the notice may be given by mail, we are inclined to hold this letter not sufficient. The second sentence in the letter was calculated to mislead the debtor to suppose that a “ demand ” would be made on another occasion. So the debtor understood it, for he says: “ I suppose you have to make your demand,” and then he says he will be ready to schedule. It was plain enough that he expected a visit from the officer, and intended then to avail himself of the exemption by making the'necessary schedule. Though the officer must have so construed the letter, he permitted the debtor to remain in the dark until the ten days had elapsed.. The exemption laws being fairly, not to say liberally, applied, will forbid anything like a scheme to mislead or deceive the debtor. That there was such a purpose here need not be determined. The officer could readily see, however, that the debtor was expecting a “ demand,” and in view of the ambiguous terms of the so-called notice, it seems quite clear that he had a right to so expect. In other Avords, as argued by appellant, the letter was intended not to give notice, but to Avithhold it. At any rate, Avhether so intended, it so operated, and the officer knew it. Common fairness and good faith required him under such circumstances to undeceive the debtor. We are of opinion the law was not complied with by the officer, and as the debtor Avas entitled to claim all the property under the exemption act, the judgment should haATe been in his favor. The judgment Avill be reversed and the cause remanded. Reversed and remanded.