provisions of the order appealed from, the question as to whether the sale should or should not have been restrained becomes a moot one, and the appeal is subject to dismissal.
Opinion filed Sept. 26, 1921.
Appeal from the District Court of Ramsey County, Buttz, J., plaintiff appeals from an order denying an application for an order restraining an execution sale.
Affirmed.
S. W. Thompson, State’s Attorney, J. C. Adamson, of counsel, for appellant.
The automobile was in the hands of the sheriff of Ramsey county awaiting the judgment in the forfeiture proceeding before the judgment was rendered on which the execution was issued. The doctrine is well settled that property in the hands of sheriffs, clerks of court, receivers, executors, etc. is regarded as being in custodia legis and cannot be reached by execution. McCullough v. Large, 20 Fed. 309; Harris v. Dennie 3 Pet (U. S.) 292; 7 Law ed. 638; Fischer v. Daudistal, 9 Fed. 145; 17 Cyc. 980 and cases cited.
Flynn, Traynor & Traynor, for respondents.
The mere fact that by such unlawful search and seizure it may be found that the parties were transporting liquor unlawfully, does not make the unlawful search and seizure thereby lawful, and the evidence obtained thereby cannot be used against such persons. Silverthorne Lumber Co. v. U. S. 251 U. S. 385; Adams v. N. Y. 192 U. S. 525; Flagg v. U. S. 233 Fed. 481; 483.
Christianson, J. This is an action instituted by the state’s attorney of Ramsey county, under the provisions of chap. 97, Laws 1921, to condemn and forfeit one certain Buick automobile. The complaint alleges that on the 25th day of March, 1921, a criminal information was filed in the district court of Ramsey county against Leslie Anderson and C. E. Story. charging them with the crime of willfully and unlawfully transporting intoxicating liquors, to wit, whisky, within said county by means of an automobile described as one Buick Six, seven-passenger automobile, 1920
