99 Ill. 445 | Ill. | 1881
delivered the opinion of the Court:
Plaintiff in error was indicted for resisting an officer in executing legal process.
It appears that J. and E. Greenwald brought an action of forcible detainer before a justice of the peace against plaintiff in error, and recovered judgment, and a writ of possession was awarded. The case was appealed to the circuit court, but appellant dismissed his appeal, and the circuit court thereupon rendered a judgment that appellee recover possession, and awarded a writ of possession. A writ was issued by the circuit clerk, and placed in the hands of the sheriff to execute. The deputy sheriff went to plaintiff in error to execute the writ, and plaintiff in error insisted it was illegal, as it should have come from the justice of the peace, and not from the circuit clerk. He also claimed that a separate heater the officer was attempting to deliver, had been taken out of the mill and another put in its place, and the separate heater did not belong to the mill. Plaintiff in error said the officer might deliver the lots, but he*could not deliver the machinery. Afterward the officer commenced to take down the fence, and plaintiff in error to put it up, and said he could put it up as fast as the officer could pull it down. The officer took plaintiff in error by the arm, and said he would have to arrest him, but the officer says he used no violence against him. The officer went again the next day and delivered the property to the agent of plaintiffs in execution, and plaintiff in error did not interfere.
This is the version of the affair as given by the deputy sheriff, and the evidence of the other witnesses is substantially the same. All agree that plaintiff in error neither struck, took hold of nor touched the officer. He only laid up the fence as the officer pulled it down to remove the heater in dispute. This piece of machinery was in nowise attached to the realty, and so far as we can see it was no part of the mill, as it had been removed therefrom and another piece substituted for it, as testified to by plaintiff in error. If not a part of the machinery connected with and appurtenant to the lots, the writ conferred no power upon the officer to take it and deliver it to plaintiffs in execution. The officer had no right under that writ to pull down a fence, and enter to take a horse of plaintiff in error to deliver to the Greenwalds. Plaintiff in error could have laid up the fence to prevent the officer from taking the horse, and not been guilty of resisting an officer, within the meaning of the statute, — and so, if this heater was not appurtenant to the lots, the possession of which he was commanded to deliver. The officer is only empowered by the writ to deliver the property for the possession of which judgment was recovered and the writ was issued.
It is urged that the writ was void, because when the appeal was dismissed it operated to remand the case to the justice of the peace from whom the appeal was prosecuted, for further proceedings, and the circuit court had no power to render the judgment and award the writ of possession. The court had jurisdiction of the subject matter and of the parties, and had undeniable jurisdiction to render judgment in the case, and whether erroneous or not, it was not void. It was valid and binding in all collateral proceedings until reversed. An execution issued under an erroneous judgment is not void, and will protect the officer executing it as fully as if it was not erroneous. He is not required to determine whether there be error in the record, to be protected. If the court has jurisdiction of the subject matter and of the parties, and the writ is regular on its face, he will be protected, unless he exceeds the power conferred by the writ. This writ was ample protection to the officer so long as he kept within the power it conferred, but if he exceeded that power he became liable as a trespasser. That, however, would not authorize the defendant to resort to personal violence against the officer, unless to protect his own person from violence and injury.
In this case plaintiff in error used no force or violence against the officer. He made no threats nor used menaces, but simply prevented the officer from breaking the fence to seize property which seems not to have been embraced in the writ, and which the officer had no lawful power to seize and deliver to plaintiffs in execution.
All of the evidence considered, we are of opinion that it fails to make a case of resisting an officer, within the meaning of the statute, and the judgment of the Appellate Court is reversed, and the cause remanded.
Judgment reversed.
