Nolty v. State, 17 Wis. 668

Nolty v. State

17 Wis. 668 | Wis. | 1864

By the Gourt,

DixoN, C. J.

The plaintiff in error having been indicted and convicted for resisting an officer in tbe execution of civil process, sues out this writ of error and claims to reverse tbe conviction on the ground that tbe alleged process was void. No bill of exceptions having been settled, tbe case comes up upon tbe record as it stands without such bill, and the question is presented upon tbe sufficiency of tbe process as it is described in tbe indictment. Tbe process was a warrant for tbe recovery of tbe possession of personal property, issued by a justice of tbe peace of tbe county of Milwaukee in conformity to the requirements of section 134 of chapter 120 of tbe Revised Statutes; except that it is urged that tbe property to be seized was so defectively described as not to authorize tbe seizure, and that the warrant was for that reason a nullity. The property was described as “ one piece of square timber, about thirty long and twelve inches square, tbe wood being of pine, of tbe value of six dollars ” &c. The objection is, that tbe length of the piece of timber was not given ; that tbe officer was not informed whether it was thirty feet or thirty inches. It is obvious from tbe nature of tbe property described, as well as from the context, that tbe word *669“ feet ” was omitted by clerical mistake. If so, tbe defect might have been cured by amendment. But if it was not that but some other word which the magistrate intended to insert, the same power of amendment existed. In either case there was no such total defect in description as rendered the process utterly void. The officer might possibly have refused to exe- • cute it (18 Wend., 496); but having executed it by the seizure of the right property, there would have been no want of jurisdiction, and the action could not on that account have been dismissed.

Conviction affirmed.