Shirk v. Metropolis & New Columbia Gravel Road Co.

110 Ill. 661

• Court: Illinois Supreme Court
• Decided: September 27, 1884
• Status: Published

Opinion

Per Curiam :

This case, in its facts, is almost identical with that of Oakes v. Williams, 107 Ill. 154, both involving precisely the same questions. In the case referred to it was held that an appeal from a judgment of the circuit court to the Supreme Court does not affect the lien of the judgment, or its capacity to become a lien on real estate acquired pending the appeal, but that its only effect is to stay further proceedings until the appeal is disposed of; that the issue of an execution on a judgment pending an appeal is irregular, but that it is not void, and that a sale of ■ land under such an execution is subject to bé set aside, on motion made in proper time, by the defendant whose land has been sold, and that no one but the defendant in the execution can question the sale for irregularity, however gross, especially in a collateral proceeding. In this case, as in the one above referred to, there was a valid judgment, and the execution issued thereon was fair on its face, and such as would protect an officer in its execution. Its issue pending the appeal is, at most, but an irregularity, of which the defendant in the writ could have taken advantage by motion in the court from which it emanated. He having failed to question the regularity of the proceeding, acquiesced in the sale of his land, and no one else can question the validity of the same. The case cited is conclusive of this in every point it presents, and no error being perceived in the record, the judgment of the circuit court will be affirmed.

Judgment affirmed.