87 Pa. 443 | Pa. | 1879
delivered the opinion of the court,
The other question relates to the form of the execution. It is undoubtedly true as a general rule that the execution must follow the judgment. That is, if the judgment be joint the execution should be against all of the defendants therein. This rule, however, is not so inflexible as to prevent its being modified by the special circumstances of the case. Thus in a joint judgment against sevéral, one of whom is an infant, the court will set aside the execution as to him; yet, permit it to go on as against the others, and sell their property. So if one of the defendants be a feme covert, and not liable on the judgment, the execution may be set aside as to her, but suffered to proceed against the other defendants in the judgment. Again, if one joint defendant in a judgment die, execution goes against the survivors. The Act of 18th April 1861, declares, “ no civil process shall issue or be enforced against any person mustered into the service of this state or of the United States.” Sheetz et al. v. Wynkoop et al., 24 P. F. Smith 198, was the case of a judgment against several defendants, one of whom had been mustered into the services of the United States, and thereby entitled to the protection of the act. It was there said by our late brother Williams, that doubtless on suggesting the fact of such service, execution might have been sued out against the other defendants. In the present case it would be the merest technicality to require the use party plaintiff to issue an
Judgment reversed, and the rule is discharged.