{
  "id": 2721587,
  "name": "John P. Horr v. The People ex rel. William Stadelman et al.",
  "name_abbreviation": "Horr v. People ex rel. Stadelman",
  "decision_date": "1880-05-18",
  "docket_number": "",
  "first_page": "169",
  "last_page": "172",
  "citations": [
    {
      "type": "official",
      "cite": "95 Ill. 169"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "91 Ill. 11",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2749345
      ],
      "opinion_index": -1,
      "case_paths": [
        "/ill/91/0011-01"
      ]
    }
  ],
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  "last_updated": "2023-07-14T20:17:10.017422+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "John P. Horr v. The People ex rel. William Stadelman et al."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Dickey\ndelivered the opinion of the Court:\nIt is not perceived how this judgment can be sustained. We know of no law making it the duty of a defendant, in an action of replevin, to' assist the officer in the execution of his process. If he knew, as he swears, that the property was then and there in the possession and control of Horr, why did he not take it? It is not charged that he was resisted in the performance of his duty by the action of any one. The only statements in the record of any supposed cause of offence are, that in the return of the sheriff, that he \u201c refused to deliver \u201d to him the property; and that of the affidavit of the deputy, that appellant \u201chad the possession and control\u201d of the property and \u201c refused to surrender the same to him on demand,\u201d and that in the recital in the record that he failed to comply with the rule which required him \u201cto deliver the property to the sheriff.\u201d\nThe constable had, by the direction of the plaintiff in execution, taken the property as the property of the defendant in execution. The sheriff claimed the property as that of the plaintiffs in replevin, and no doubt under his writ had lawful authority to take it.\nThe fact of such taking would be a full protection to the constable for failing to sell. But he was not bound by any affirmative action of his own to part with the property. He had a right to say to the sheriff: Take at your peril. I will not make myself responsible to the plaintiff in my execution for your act. The writ commanded the sheriff to take the property; it did not command the defendants in replevin to deliver the property to the sheriff.\nWe think it was error in the circuit court to impose this upon appellant as a duty, and to fine and imprison him for a failure to perform the supposed duty. We have not had our attention called to any precedent for such a proceeding.\nThe judgment and order of. the circuit court, imposing the fine and ordering the imprisonment, must be reversed.\nJudgment reversed.",
        "type": "majority",
        "author": "Mr. Justice Dickey"
      }
    ],
    "attorneys": [
      "Mr. Joseph Schlernitzauer, for the appellant."
    ],
    "corrections": "",
    "head_matter": "John P. Horr v. The People ex rel. William Stadelman et al.\nFiled at Ottawa May 18, 1880.\n1. Contempt\u2014in constable for refusing to deliver property levied upon to sheriff on replevin. Where a constable has levied upon property under an execution in his hands, and a party other than the defendant in execution sues out a writ of replevin for the property against the constable, the court issuing the writ of replevin has no right to require the constable to deliver the property to the sheriff, and the constable is not liable to punishment for a contempt of court in refusing to surrender the property on demand to the officer having the writ of replevin. The defendant in replevin is not bound to assist the officer in the execution of his process.\n2. Officer\u2014released from selling property levied on when taken from him on replevin. The taking of property from a constable which he has seized on execution, by a writ of replevin, is a full protection to Mm for failing to sell the same, but he is not bound to part with the property by any affirmative action of his own.\nAppeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.\nAppellant, being a constable of Cook county and having in his hands a ft. fa. from a justice of the peace against the property of one Mrs. Herman, in favor of one Johns, by the advice and directions of Johns seized certain personal property, which is alleged to be the property of a firm known as \u201cThe Chicago Furniture Company,\u201d and of which one Stadelman (a son of Mrs. Herman) was a member; and having seized the same, gave the same into the custody of Johns, the plaintiff named in the ji. fa., to hold until the day of sale.\nStadelman and others, composing the \u201c Furniture Company,\u201d brought replevin for these goods against Horr, the constable, and Johns, the plaintiff in execution.\nThe writ was given to the sheriff to execute. He made return to the writ, that he had served the same \u201cas to John P. Horr by reading the same to him and also demanding the within described property from him, and which said defendant refused to deliver,\u201d and that the other defendant was \u201cnot found.\u201d\nAfterwards, on motion of plaintiffs in the replevin suit, the court entered a rule against Horr, on the affidavit of the deputy sheriff (who had the writ to execute), \u201cthat as such, on April 29, 1878, he demanded of Horr \u201d the property in question; \u201c that said Horr then and there had the possession and control of said property, and then and there refused to surrender the same to the sheriff of Cook county upon such demand.\u201d\nThe rule required Horr to. deliver to the sheriff the property or show cause to the contrary by 10 o\u2019clock of a given day.\nIn answer to the rule Horr appeared, and for cause showed that the property in question was in the custody of his co-defendant and not in the possession and control of himself, and not in his power to deliver.\nThe court thereupon extended the time for complying with the rule two days longer.\nThis time having expired, and the rule not being complied with, Horr was brought before the court for contempt in not obeying this rule, and fined $25, and committed to jail for twenty-five days.\nFrom this judgment and order an appeal was allowed to this court, and appellant asks that the same be reversed.\nMr. Joseph Schlernitzauer, for the appellant.\nSee, also, Yott v. The People, 91 Ill. 11, as to the power of the court to compel the defendant in replevin to surrender the property."
  },
  "file_name": "0169-01",
  "first_page_order": 169,
  "last_page_order": 172
}