Haskell v. Littlefield

| Mass. | Jan 7, 1892

Barker, J.

Assuming that the judgment debtor’s reversion, after the expiration of the homestead estate, might be taken on execution for this debt before the expiration of the homestead estate, (Smith v. Provin, 4 Allen, 516, 517; White v. Rice, 5 Allen, 73, 75; Doyle v. Coburn, 6 Allen, 71" court="Mass." date_filed="1850-09-15" href="https://app.midpage.ai/document/miller-v-butler-6409385?utm_source=webapp" opinion_id="6409385">6 Allen, 71; Gen. Sts. c. 103, § 1,) and that the levy was in conformity to the provisions of the statute, the petitioner derived no title under it, for the reason that his execution was void. His original judgment was obtained on October 19, 1869, and was for the sum of §110.02 damages, and §29.93 costs. Execution had issued on this judgment, and had been levied on real estate and returned satisfied, and after the levy had been adjudged void the petitioner brought scire facias to obtain another execution. His writ of scire facias was sued out on August 2, 1873. In it he alleged that the judgment was altogether unsatisfied, and stated the date of recovery and the amount of damages and costs of the original judgment as recorded, and that the amount then due upon it was §169.64, and prayed that he might have another execution for the amount of the judgment then due. The judgment debtor did not appear in answer to the writ of scire facias, and upon his default judgment was entered against him in these words: “ Thereupon it is considered by the court that an alias execution issue as prayed for in said writ.” Upon the entry of this judgment, the execution under the levy of which the petitioner claims title was issued, on October 25,1873. This execution recites correctly the original judgment, and commands the payment of the amount of the original judgment, with interest thereon from October 19, 1869, with fifty cents for that and a former writ. The Gen. Sts. c. 103, § 22, under which the writ of scire facias was brought, provided that another execution might be issued for the amount then due on the original judgment, without interest or further costs. The judgment upon the writ of scire facias, “ that an alias execution issue as prayed for in said writ,” must be construed in connection with the statute. If it could be construed otherwise, it could only be held to mean that the court adjudged that an alias execution should issue for the $169.64 which the writ alleged to be due on the judgment, and the execution issued did not follow the judgment under either construction. We think, however, that the judgment upon scire facias went no further than to authorize the issuing of a new execution as provided for in the statute referred to, which would be for the amount of the original judgment, without interest or further costs, and that the execution actually issued was void because issued for interest also. Whether the direction in it to collect fifty cents for the two executions was wrong, we do not decide. Exceptions sustained.