{ "id": 2474018, "name": "William A. Snyder v. Edward Powell", "name_abbreviation": "Snyder v. Powell", "decision_date": "1907-04-18", "docket_number": "Gen. No. 13,140", "first_page": "393", "last_page": "398", "citations": [ { "type": "official", "cite": "133 Ill. App. 393" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "88 Ill. App., 198", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5277087 ], "opinion_index": 0, "case_paths": [ "/ill-app/88/0198-01" ] }, { "cite": "76 Ill. App., 464", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5791785 ], "opinion_index": 0, "case_paths": [ "/ill-app/76/0464-01" ] }, { "cite": "50 Ill. App., 286", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5121243 ], "opinion_index": 0, "case_paths": [ "/ill-app/50/0286-01" ] }, { "cite": "104 Ill., 561", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 } ], "analysis": { "cardinality": 499, "char_count": 11456, "ocr_confidence": 0.529, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.0812112984193287 }, "sha256": "64d3012d4437532caabf5f2f7e875410f300c0654745087f4a9b301bd4fa5796", "simhash": "1:c34be335f91fa38c", "word_count": 2061 }, "last_updated": "2023-07-14T19:31:03.243405+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "William A. Snyder v. Edward Powell." ], "opinions": [ { "text": "Mr. Presiding Justice Brown\ndelivered the opinion of the court.\nThe 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, \u201cdefiance\u201d 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 Honor\u00e9 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.\nWe do not think the court had the right to make either of these orders.\nThe 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.\nSection 6 of article 13 relates entirely to the sole subject of that article\u2014\u201cTrials of Eight of Property,\u201d 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 \u201cforthcoming\u201d bond in cases of appeal from the judgment in the trial of the property right, and provides also for the constable\u2019s 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 \u201cstay all further proceedings\u201d in the case, found in section 3 of article 10 of the Act.\nSection 9 of article 11 is as follows: \u201cAny 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\u2019 notice of such sale by advertisement, to be posted at one public place.\u201d\nIt 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.\nIt 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 \u201clawful\u201d 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?\nWe think the court\u2019s 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 \u201cto stay proceedings\u201d when served with proper notice of the certiorari.\nBut 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.\nIf the court\u2019s 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\u2019s 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.\nReversed:", "type": "majority", "author": "Mr. Presiding Justice Brown" } ], "attorneys": [ "R. G. Lewis and Louis Greenberg, for plaintiff in error; C. Stuart Beattie, of counsel.", "James Todd, for defendant in error." ], "corrections": "", "head_matter": "William A. Snyder v. Edward Powell.\nGen. No. 13,140.\n1. Constable\u2014power of, with respect to acceptance of delivery bond. A constable is not bound by statute to accept a delivery bond where he has levied upon property upon a justice\u2019s execution. It is within his discretion to accept or refuse such a bond.\n2. Appeal on certiorari\u2014effect of, upon levy. An appeal or certiorari does not operate to vacate the proceedings already had and a levy already made.\n3. Contempt\u2014when constable not guilty of. A constable is not guilty of contempt in refusing to obey an order of the Circuit Court requiring him to accept a delivery bond to release a levy made upon an execution issued upon a justice\u2019s judgment, where such levy preceded the certiorari proceedings instituted to review the judgment under which the levy was made. The order being without the Court\u2019s jurisdiction was void.\nAction commenced before justice of the peace. Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.\nHeard in this court at the October term, 1906.\nReversed.\nOpinion filed April 18, 1907.\nStatement by the Court. This is a writ of error directed to the Circuit Court of Cook county to secure the reversal of an order entered by a judge of that court committing the plaintiff in error, William A. Snyder, to the county jail of Cook county \u201cuntil,\u201d to quote from the order, \u201che complies with the orders of the court, or until he purges himself of the contempt by him committed against the court, or until otherwise discharged by due process of law; in no event is such imprisonment to exceed six months.\u201d\nThe proceedings out of which this order sprang began before a justice of the peace of Cook county, John It. McDonnell, in whose court a judgment was obtained against one Edward Powell by the People of the State of Illinois for the use of Christ Munch, for the sum of $200 and $4.6o costs, on July 10, 1906. On this judgment William A. Snyder, the plaintiff in error, who was a constable, received an execution for service, and levied it upon four horses, two sets of double harness and one spring wagon belonging to said Edward Powell.\nAugust 3, 1906, Powell filed in the Circuit Court of Cook county a petition for a certiorari, which was granted. The writ issued and was served on McDonnell, the justice, the same day. An appeal bond as required was also filed that day in the Circuit Court, and an order entered reciting that \u201ca forthcoming bond had been presented and approved by the court in favor of Constable W. A. Snyder, etc.,\u201d and commanding Snyder instanter on delivery, to him of the forthcoming bond, \u201capproved by me\u201d (so the order runs), \u201cto turn over to said Edward Powell said horses, harnesses and wagon which he holds by virtue of said execution, a writ of certiorari having this day been granted in said cause to the Circuit Court.\u201d\nOn the same day, as appears by the affidavit of James Todd, later filed in the cause, Powell\u2019s solicitor called on Snyder and offered him a bond purporting to be approved by Judge Honor\u00e9 of the Circuit Court, and demanded that he turn over to Edward Powell the property he had levied on. Snyder refused, on advice of counsel, to accept said bond or to turn over said property.\nThereupon, on August 4, on motion of Powell\u2019s attorney, Snyder was required by the Circuit Court to show cause on August 7, why he should not be attached for contempt of court.\nAugust 7 Snyder entered his special appearance for the purpose of objecting to the jurisdiction of the court, and filed a sworn answer to the rule, in which he set forth that he had, as constable, levied upon certain property of Powell by virtue of legal process from McDonnell as justice, and held it by virtue of such levy; that no writ had been served on him from the Circuit Court, and that the court ought not to have further cognizance of the rule for want of jurisdiction of the subject-matter and person.\nAugust 8 the matter apparently came to hearing, for on that date the affidavit of James Todd, above referred to, was filed, and also an affidavit of Edward Powell that at the time of the levy he had offered to give the constable a bond for any amount that was required if he would leave him his horses, but the constable had demanded $200 in cash.\nAugust 8 another order was entered, which recited that a forthcoming bond in the sum of $500 had been presented and approved by the court in favor of Constable W. A. Snyder, who had levied on certain personal property described, and proceeded, \u201cit is hereby ordered that in addition to the order of August 4 it is further ordered that the said constable W. A. Snyder upon the said Edward Powell in open court tendering a forthcoming bond in the sum of $500, with good real estate security, to be approved by him at once, or upon the delivery to him of the forthcoming bond approved by the court, do instanter turn over and deliver to the said Edward Powell\u201d the said property.\nOn August 10, 1906, the order to secure the reversal of which this writ of error is prosecuted, was entered. Preceding the ordering words, quoted at the beginning of this statement, there are recitals in said order that Snyder appeared in open court by person and by counsel, that the court interrogated him and ruled him to show cause why he should not be committed for contempt, etc., and the respondent answered that he had no other cause to show than that which his attorneys had already presented, and also findings that the causes shown by said attorneys were insufficient, and that the respondent had refused to accept the forthcoming bond approved by Judge Honor\u00e9, and that he had been tendered a good forthcoming bond by Edward Powell, and had refused to accept and approve any forthcoming bond by Edward Powell, and was guilty of contempt in standing in defiance of the order of the court.\nA writ of error that was sued out of this court was made a supersedeas, and the plaintiff in error was released on bail.\nIt is alleged by the assignments of error that the orders above described of August 3d, 4th, 8th and 10th, were erroneous.\nR. G. Lewis and Louis Greenberg, for plaintiff in error; C. Stuart Beattie, of counsel.\nJames Todd, for defendant in error." }, "file_name": "0393-01", "first_page_order": 411, "last_page_order": 416 }