#### Thomas Mason, Appellant, v. The President and Directors of the State Bank of Illinois, Appellees.

APPEAL FROM EDWARDS.

To authorize an inquiry by the sheriff into the right of property, it is necessary there should be a taking of personal property by a writ of execution regularly issued at the suit of a plaintiff against a defendant, and a claim interposed by a third person. And in case of an appeal to the circuit court, all the proceedings before the sheriff are to be transmitted; if they are not, the circuit court can not exercise jurisdiction.

Opinion of the Court by

Justice Smith.*

The extremely imperfect state in which this cause is presented to the court by the record, has led to some embarrassment as to the course which ought to be adopted in the disposition to be made of it. Whether from its manifest imperfections and omissions it ought not to be dismissed as presenting no absolute question for the determination of this court, or whether by deter*184mining from the record itself that no case is presented of which the court below had jurisdiction, to reverse the judgment of the court below for that cause.

It is alone by inference that this court can imagine what the real cause of inquiry and adjudication was intended to have been in the circuit court. It would seem to relate to an appeal from some inquiry had before a sheriff as to the right of personal property taken in execution at the suit of some one under the act of 10th of January, 1825,* amendatory of an act prescribing the mode of trying the right of property in certain cases, approved the 7th of February, 1823. But whether or not such was the case, we are, from the record, left entirely to conjecture.

By the second section of this act, it is made the duty of the sheriff, whenever property is taken by him under execution, and shall be claimed by a person not a party to the writ of execution, to ascertain the right of property through the intervention of a jury of twelve men, before whom the respective parties may exhibit their evidence, reserving to either party the right of appealing from such decision to the circuit court of the county where such decision may be had. In case of an appeal from the decision had before the sheriff, it is made the further duty to transmit to the clerk of the circuit court of the county of which he is sheriff, ten days before the first day of the term of the court next following the time of such inquiry had before him, all the proceedings by him had in such case, and the circuit court may review the same in such manner as it shall direct.

From the provisions of the law it clearly follows that there must have been a taking of personal property under a writ of execution regularly issued at the suit of a plaintiff against a defendant, and a claim interposed by a third person to authorize an inquiry by the sheriff, and that in case of appeal, all the proceedings are to be transmitted to the circuit court in the manner directed by the act. In the present case, nothing appears to show that the sheriff could assume jurisdiction of the inquiry, if it be admitted by the proceedings set forth by the record, (which is certainly very doubtful,) that such an inquiry was ever made.

For ought that appears to this court, no writ of execution ever issued at the suit of any one, no personal or other property was ever taken from the possession of the defendant, or third person, nor have proceedings relative to such an inquiry ever been returned into the circuit court of Edwards *185county. How then could the circuit court of Edwards county ever assume jurisdiction of the supposed controversy, when none appears to have existed before the sheriff? The circuit court could alone entertain jurisdiction of the matter of inquiry before the sheriff, as an appellate court, and in proceeding to review the inquiry before the sheriff, is it not indispensable that the proceedings had before him should have been returned to the court to enable it to exercise jurisdiction in the case ? It is urged, that the parties, by their appearance, have given the court jurisdiction. This to a certain extent is true, if the court had jurisdiction of the subject matter ; but that subject matter must be presented to the court in a form sufficiently definite for it to judge whether or not it has such jurisdiction. Here the difficulty arises, that although the parties did appear and proceed to a hearing, no cause or subject matter appears to have been presented, upon which the court would give a judgment. It is the want of this that vitiates the whole proceedings in the circuit court. The irregularity in omitting to show the character of the proceedings before the sheriff, and the entire absence in the record of any description of complaint which could form the subject of a judicial investigation, is too manifest to warrant a doubt of the want of jurisdiction in the circuit court, notwithstanding the appearance of the parties.

Eddy, for plaintiff in error.

Robinson, circuit attorney, for defendant in error.

I am therefore of opinion that the judgment be reversed and that the plaintiff in error recover his costs. (1)

Judgment reversed.

*

Lockwood, J., having been counsel in this cause, gave no opinion.

*

Laws of 1825, page 69,

(1)

On the trial of the right of property, levied on under an execution, the claimant objected to the execution on the ground that it was a. nullity, having been issued by a court not having jurisdiction. It was held, that if the execution was a nullity, the claimant ought to have brought an action of trespass, replevin, or trover, for the goods, against the officer, and not have required a trial of the right of property. By requiring such trial, he admitted the validity of the execution and only claimed that it had been levied on his property, and not on that of the defendant in the execution. Harrison v. Singleton, 2 Scam., 21.

An officer, after having levied an execution, may have a controverted title tried by a jury, whose verdict will be a guide and warrant for his future action. Wentworth v. The People, 4 Scam., 555.