Welsh v. Wilson

24 N.W. 327, 34 Minn. 92, 1885 Minn. LEXIS 167

• Court: Supreme Court of Minnesota
• Decided: July 24, 1885
• Status: Published

Opinions

Gilfillan, G. J.

Plaintiff occupied in Waseca a building one story high, of only one room. In this she, with her daughter, slept; and did upon a kerosene stove what cooking she did, but usually got their meals at a restaurant. In it she also pursued her trade as a milliner, and kept in it for sale, and exposed for sale, a stock of millinery goods. It was fitted up like a store, with shelves, tables for counters, show-cases on the tables, and one in front, on and in which her goods were kept for sale. The defendant, sheriff of the county, having an execution against her property, went, about 10 o’clock in the morning, to the building, the door of which was then locked, put his hand through the window, a pane of which was broken, took the lock off the door, entered, and levied on and removed her goods. The validity of the levy is only in question.

The room must be taken to have been plaintiff’s dwelling, — her abode, — not merely when closed to business, but at all times while she occupied it for her dwelling. The fact that she also used it to-transact her business did not change its character in that respect. It being her dwelling, it was unlawful for the sheriff to break the outer door to effect an entrance for the purpose of serving civil process. This proposition has never been doubted, either, in England or in this country. It is also well settled in this country — there being no authority to the contrary — that no valid levy can be made by means of such unlawful entry. We may, perhaps, regret that such is the rule; may be able to see that unfortunate consequences will sometimes result from it; but it is too firmly established to be disturbed, except by act of the legislature. The levy being invalid, nothing which the sheriff did pursuant to it was valid. Every subsequent, act based on the levy, and depending on it for its lawfulness, was but a continuation and aggravation of the original trespass. It can therefore be of no avail to the sheriff that he sold the goods and paid the proceeds to the execution creditor. In the cases where, as in Howard v. Manderfield, 31 Minn. 337, such subsequent appropriation has been allowed to operate in mitigation of damages, there has been a subsequent valid levy, not connected with the trespass, which gave validity to the sale and appropriation of the proceeds.

Judgment affirmed.