66 Ill. App. 625 | Ill. App. Ct. | 1896
delivered the opinion of the Court.
An execution is process awarded and belonging to the plaintiff therein, and he having a right to control it, his interests and wishes should at ail times be respected by the officer in charge.
While the plaintiff has no right to insist upon a fraudulent or oppressive use of the writ, nor in any respect to compel the officer to exercise a severity which would seem to be actuated by malice toward the defendant as much as by a desire to obtain satisfaction of his judgment, all directions of the plaintiff not savoring of fraud nor undue rigor and oppression, must be obeyed, or the officer will be held liable for injurious consequences flowing from his disobedience. Morgan v. The People, 59 Ill. 58; Reddick v. Admrs. of Cloud, 2 Gil. 670; Walworth v. Reedsboro, 24 Vt. 252; Patton v. Hamner, 28 Ala. 618; Freeman on Executions, Vol. 1, Sec. 108; Boyden v. Frank, 20 Ill. App. 169.
The statute of this State with reference to sales upon execution provides (R. S., Chap. 77, Sec. 49): “The officer may postpone such sale from time to time, not exceeding ten days at one time, whenever, for want of bidders or other good cause, he shall think it for the interest of the parties concerned.”
The evidence in this case shows that the postponement was not for want of bidders. Was it for “ other good cause ? ”
The statute of this State contains the following provision :
“ That whenever an execution or writ of attachment issued from any court of record, shall be levied by any sheriff or coroner upon any personal property, and such property shall be claimed by any person other than the defendant in such execution or attachment, or shall be claimed by the defendant in the execution or writ of attachment as exempt from execution or attachment by virtue of the exemption laws of the State, by giving to the sheriff or coroner notice in writing of his claim, and intention to prosecute the same, it shall be the duty of such sheriff or coroner to notify the judge of the County Court of the same.” R S., Chap. 140, Sec. 1.
Thereafter a trial of right of property may be had in the County Court.
There is no pretense that the postponement was in pursuance of this statute. The sheriff did not give notice to the judge of the County Court, of an intervening claim; there was not a postponement in order to give time for a trial of right of property.
The Superior Court, from which the execution issued, upon application of the intervening claimant, refused to postpone the sale; the sheriff being informed of this, upon his own responsibility, and despite the orders of the plaintiff, continued the sale.
For such act the record shows no “ good cause ” (see Sec. 49, Ch. 77, R. S.); and therefore for whatever damage happened in consequence of his neglect, the sheriff is responsible to the plaintiff.
Prima fade the measure of damages is the debt due the plaintiff, and the burden rests on the defendant to show facts in mitigation. Bank of Rorne v. Curtis, 1 Hill, 275; Dunlap v. Berry, 4 Scam. 327; Pardee v. Robertson, 6 Hill, 550; Patterson v. Westervelt, 17 Wend. 543; Weld v. Bartlett, 10 Mass. 474; Young v. Hosmer, 11 Mass. 89; Harris v. Kirkpatrick, 35 N. J. L. 392; Humphrey v. Hathorn, 24 Barb. 278; Ledyard v. Jones, 3 Seld. 550; People, for use, etc., v. Palmer, 46 Ill. 402.
In the present case, not only did the sheriff fail to show an excuse for not selling as directed by the plaintiff, but it was shown that the sheriff had notice that there was present a party ready to bid the entire amount of the plaintiff’s claim, when the sheriff, in defiance of the direction of the plaintiff, postponed the sale.
The judgment of the Circuit Court is affirmed.
