25 Miss. 156 | Miss. | 1852
delivered the opinion of the court.
The plaintiff in error made a motion to quash an execution issued on the 5th day of July, 1851, upon a judgment rendered against him, in the circuit court of Marshall county, on the 17th of March, 1842, on the ground, that said judgment was rendered more than seven years before the 24-th of February,
It is insisted that this execution, under the facts stated in the bill of exceptions, was void, and that, therefore, it cannot be treated as an execution issued within the seven years, as contemplated by the 8th section of the act of limitations. Hutch. Code, 830, 831. The execution is not set out in the record, but the facts very clearly show, that it was made returnable to the regular January term, 1851, of said court. The court judicially know, that the first day of said term was the third Monday in January, and, therefore, not more than five days could possibly intervene between the date and the return of the execution, as the third Monday must have come before the 22d day of the month.
There are two statutes bearing upon this question, and either will show the execution to be void. The first was passed on the 22d of June, 1822, (Revised Code, 193,) and says, that executions shall be returnable to ‘the first day of the next term of the court, in which the judgment shall have been rendered, so that there be at least fifteen days between the date of the writ and the return thereof. The act then provides how the execution shall issue and be made returnable, in case the fifteen days do not intervene the date and the return day.
The other statute was passed the 21st of January, 1823, and says, that if fifteen days shall not intervene the date of the execution and the next term of the court in which the judgment shall have been rendered, the plaintiff or plaintiffs may sue out an execution returnable to the term next succeeding the first term of the court thereafter.
We have already seen that, under the facts in the record, not
We have also examined the question submitted upon the agreed state of facts, and it is clear, that the execution was not intended to be executed, but only to operate against the bar of the statute of limitations, which says, that no person shall sue out an execution on any judgment or decree after seven years from the time the last execution issued. This statute clearly contemplates the issuance of an execution for the purpose of .enforcing the judgment. When it issues for this purpose, the ' defendant will likely have notice of it, and if in the mean time the judgment has been paid, he can take steps to supersede the • execution, and avail himself of his evidence which he may ■then have to show payment.
This advantage, however, might be lost to him by the lapse of time, if the plaintiff were allowed secretly to issue his execution, from time to time, a few days before court, and get the sheriff to sign a return, “ came to hand too late to levy and sell before the return day.”
The law means an execution in the full sense of the term, for the purpose of obtaining, actually, possession of the thing or money recovered by the judgment. 3 Bacon, 351. Or, as defined in other books, for the purpose of carrying into effect the judgment. The execution of the 16th January, 1851, was not issued for this purpose; and it cannot, therefore, be treated as an execution within the meaning of the statute.
Judgment reversed, motion to quash sustained, and execution quashed.
