Smith v. Brittenham

3 Ill. App. 62

• Court: Appellate Court of Illinois
• Decided: November 15, 1878
• Status: Published

Opinion

Per Curiam.

We find no error in the record of this case, except in that portion of the decree rendered by the court below, in which it provides that the possession of the premises in controversy be surrendered to appellee within thirty days, and upon failure or refusal, that the clerk of the court issue the usual writ of assistance, under the seal of the court, to the sherifi to put appellee in possession of the lands. The authority to the clerk to issue the writ of assistance could not be conferred by the court in the manner attempted by the decree. In Bruce v. Roney et al. 18 Ill. 74, it was held, “ should a writ of assistance become necessary to put the complainant in possession of the interest in the land to which he is entitled, he should be required to present the facts requiring the assistance to the circuit court; so that the court itself may judge of the propriety of awarding the writ.”

The decree of the circuit court must be reversed and the cause remanded, with directions to that court to proceed with the execution of said decree in accordance with this opinion.

Beversed and remanded.