63 Md. 57 | Md. | 1885
delivered the opinion of the Court.
The appeal in this case is from an order overruling a motion to quash a writ of venditioni exponas, under which a sale of certain real estate of the appellant was made. Many reasons are assigned in support of the motion, and some of them proceed upon the supposition, that errors and irregularities in the judgments recited in the execution can be availed of upon the motion to quash. Whereas upon such motion to quash the writ, no such question can arise. Boyle vs. Robinson, 7 H. & J., 200; Clark vs. Diggs, 5 Gill, 109; Trail vs. Snouffer, 6 Md., 308; Schultz vs. The State, 43 Md., 295. A motion to quash an execution does not open an inquiry into supposed errors or
By the recitals in the pendí, it appears that in 1863, a .judgment was recovered in the Circuit Court for Prince George’s County, by Charles Claggett, guardian of Mary O. Scott, against the defendant Hall, for as ' well the sum of $2203.71, with interest from the 16th of November, 1863, as the sum of $8000 damages, sustained by reason of the detention of the debt, as also $16.78, for his costs. Whereas, by the short copy from thef docket entries of that judgment, filed in this case, it appears that the judgment was on verdict for $8000 damages, and costs; to be released on payment of $2203.71, with interest from the 16th of November, 1863, until paid, and costs. It thus appears •that the judgment on the roll was not correctly recited in the writ, and that the important term in the judgment, that the damages should be released upon the payment of the debt, with interest and costs, was wholly omitted. This judgment was superseded by Lowe, Scott and Gardner, and upon the expiration of the stay, an appeal was •taken to the Court of Appeals from the supersedeas judgment, and which judgment was duly affirmed by the Court of Appeals, at the October Term, 1865. In reciting the judgment of the Court of Appeals in the writ, the release of the damages is also omitted. The writ recites that on the 15th of June, 1870, a scire facias was issued out of the Court of Appeals upon the judgment of affirmance, ■against all the defendants therein, returnable to the next
It appears from the short copy of the judgment fiat,. that the judgment was an award of execution against-Hall alone for $2203.71 debt, and $8000 damages and costs; the damages to be released on payment of the debt, with interest, &c., and $16.78 costs of original judgment, $29.55 costs in the Court of Appeals, and costs on sci. fa. $19.35. This judgment is not properly recited in the writ,, and the condition upon which the damages were to be released has been wholly omitted. Indeed, a more in-artificially drawn process has seldom been issued.
The judgment on the scire facias is the effective judgment, and ought to have been accurately recited in the process of execution. Where a fieri facias is sued out after a scire facias on a judgment, the fieri facias must, be grounded on, and contain a proper recital of, the judgment on the scire facias, even though the scire facias was sued out unnecessarily. Davis vs. Norton, 1 Bing., 133; 2 Tidd’s Prac., (9th Ed.,) 998. The scire facias was on the supersedeas judgment, and whether the judgment fiat operated to revive the original judgment, it is-unnecessary to decide, as the supersedeas judgment and the revival thereof have an independent operation, so far
One of the reasons assigned for quashing the vendi. is, that the writ of fieri facias was sued out in the name of the State of Maryland, without authority of law, and there was no legal party prosecuting the writ. But this is an entire misconception. The writ of fieri facias, as we gather from the recitals in the vendi., was sued out not in the name of the State, hut in the name of Clagett, the legal plaintiff, upon the record. It is true, there had been a use entered to the State, but that did not make the State a legal plaintiff upon the record. And supposing, as is contended by the appellant, that this use to the State was wholly unauthorized and invalid, it could in no manner affect the validity of the execution. The recitals of the mere equitable uses in the body of the writ were not only
The fieri facias not being before us, and the motion to quash applying only to the vendi., we could not be, and are not, called upon to determine anything in regard to the sufficiency of the fieri facias, or the regularity of its issual. We must therefore assume that it was sufficient and in all respects valid. It is only with respect to the form and legal sufficiency of the vendi. that we are now called upon to pass. The proper form of the writ is of a very simple nature, and it was therefore wholly unnecessary to incumber it with long recitals of the proceedings prior to the issuing of the fieri facias, upon which it was founded. It should simply have recited the former writ and return, and commanded the sheriff to make sale of the property seized and remaining unsold. 2 Har. Ent., 776. As said by this Court, in Clark vs. Belmear, 1 G. & J., 448, “ The fieri facias is the effective writ in these cases; it not only authorizes the sheriff to seize, but to sell. Very different is the office of a venditioni exponas. That confers no new power on the sheriff; it does not authorize him to do any act that he might not have done under the fieri facias. It is only a mandatory writ, and directs him to carry the fieri facias into effect, by selling the lands taken in execution under it, and when the lands are sold, the return to the vendi. relates to, and in legal effect becomes part of, the return to the fieri facias.” See
Now, putting aside the non-essential and irrelevant matter introduced into the frame of the writ, as mere surplusage, the only ground of objection that affects the legal sufficiency of the writ is the variance between the judgment as recited, and that upon which the process issued. As we have seen, the judgment as recited is for so much debt, so much damages, and costs; and the command' to the sheriff was to make those respective sums. Whereas the judgment upon the record shows that the damages were to be released upon the payment of the debt, with interest thereon, and costs. This conditional release of the damages is an essential part of the judgment, and should not have been omitted in the recital of the judgment in the execution. Ing & Mills vs. The State, 8 Md., 287. Such variance, however, does not render the process void, but only voidable. Miles vs. Knott, 12 G. & J., 442; Bissell vs. Kip, 5 John., 89-100.
How then should this defect in the process be dealt, with, under the circumstances of the case ? To quash the process for such a defect would not only defeat what would appear to be a fair sale of the property, but would most likely result in a defeat of all execution of the judgment. This would be a great hardship to the judgment creditor, and especially so as it would be occasioned by the unskilfulness or misprision of the officer of the Court, and without the fault of the party himself. To meet such cases, the power of amendment of executions is very large, and is most liberally applied by the Courts, to prevent injustice and to protect purchasers at judicial sales. Hence writs of execution may be and are constantly amended . by the judgment, or by the award of them on the roll, or by former process; and this is allowed even after application to set them aside, unless the rights of innocent third parties have intervened. Being judicial process, there is an inherent power in the Courts, to amend and correct them,
In order, therefore, that the right and benefit of amendment may be obtained in this case, we shall reverse the order appealed from, but refuse to quash or set aside the writ, and shall remand, the case to the Court below, where the motion to amend may be made.
In view of the terms of the order to enter the appeal in this case, it is very questionable whether the motion to set *
Order reversed, and cause remanded for amendment.