Snyder v. Powell

Mr. Presiding Justice Brown delivered the opinion of the court. The basis for the commitment for contempt involved in this canse was the order of August 8, 1906, made in amendment of and as a substitute apparently for the previous order of August 3, 1906. It is to disobedience, or, as it is expressed, “defiance” of one or both of these orders to which the court refers in its somewhat indefinite order of commitment on August 10. But presumably it is the order of August 8 which is actually relied on, for that order contains a less drastic direction to the constable, Snyder, than the one of August 3. The order of August 3 required the constable to accept a particular forthcoming bond approved by the court, and deliver thereon the goods he had seized. The order of August 8 recognized, apparently, the. doubtful legality of such a requirement, and provided an alternative. The constable was required to accept the bond which Judge Honoré had approved, or some other bond which Edward Powell might tender him in open court in the sum of $500, with good real estate security, to be approved by Mm, the constable. We do not think the court had the right to make either of these orders. The only statutes which provide or attempt to regulate delivery bonds on .which property taken on execution by a constable on a judgment before a justice shall be released, are section 9 of article 11, and section 6 of article 13 of the Justice Act of 1895. Section 6 of article 13 relates entirely to the sole subject of that article—“Trials of Eight of Property,” and is only applicable to cases where a claimant under that article has set up a right to property taken on execution or attachment against another person, and it may therefore be dismissed from consideration, except to note that this provision does explicitly provide for the taking of a delivery or “forthcoming” bond in cases of appeal from the judgment in the trial of the property right, and provides also for the constable’s duty in case no such bond is given. This is significant in its bearing on the fact that except in cases of this nature there is no provision at all as to the duty of the constable in cases of appeal or certiorari, further than the general provision that he is to “stay all further proceedings” in the case, found in section 3 of article 10 of the Act. Section 9 of article 11 is as follows: “Any constable shall be authorized to remove property levied on by him when it shall be necessary for the safe keeping of the same. If the defendant shall desire to retain the property so levied on until the day of sale, it shall be lawful for the said constable to allow the defendant to so keep the same, if said defendant, or his agent, shall give bond to said constable in double the amount of the execution, with good security, conditioned for the delivery of said property to the same constable, at the time and place of sale to be named in such bond. And if the said property shall not be delivered as aforesaid at the time and place of sale, the constable having the execution may proceed to levy the same upon the same or any other property of the defendant, or upon the property of the security in such bond, and shall sell the same, giving two days’ notice of such sale by advertisement, to be posted at one public place.” It seems clear to us, from consideration of the language of section 3 of article 10, and section 9 of article 11, together, that the statutory duty and rights of the constable in regard to the goods he has levied upon cannot be changed by the action of the court to which an appeal is taken or from which a certiorari is obtained after the levy is made. It is not necessary to decide whether or not the statute does not prohibit a constable, after the supersedeas is issued, from taking a delivery bond; it certainly does not compel him to take one either before or after appeal. If he chooses to do so before appeal, it is “lawful” for him to do so and to give up the property. Perhaps it would be lawful afterwards, at his discretion and on his being satisfied as to the bond. But where does the Circuit Court derive its authority to interfere with his discretion, to approve bonds for him, or to order him to take them? We think the court’s action wholly without jurisdiction. Snyder was no party to the certiorari proceedings further than the statute (section 3, article 10) imposed upon him a duty “to stay proceedings” when served with proper notice of the certiorari. But that an appeal or certiorari does not operate to vacate proceedings already had and a levy already made, is plain from the statute, and has been often decided. Seymour v. Haines, 104 Ill., 561; Dawson v. Cunning, 50 Ill. App., 286; Schafer v. Buck, 76 Ill. App., 464; Bank of Commerce v. Franklin, 88 Ill. App., 198. If the court’s orders of August 3 and August 8 were without jurisdiction, there was no contempt in disobeying them. It is not a case where the order disobeyed is erroneous, but made within the court’s jurisdiction. In this case the constable was as independent of the judge, as was the judge of the constable. The order of commitment of August 10, 1906, made by the Circuit Court must be reversed and it is so ordered. Reversed: