1 Nev. 613 | Nev. | 1865
Opinion by
The proposition we think well settled that the execution must be authorized by the judgment and must follow it in every essential particular, not only as to material matters of form, but also as to the amount for which is rendered.
If the writ is issued for an amount materially in excess of the judgment, a levy and sale made to satisfy such excess is nugatory and will be set aside upon the application of any person interested, or whose rights have been prejudiced thereby.
When but one sale of property is made under such an execution, and an amount materially exceeding the judgment is realized, the entire proceedings under the writ are nugatory.
When several levies and sales are made for separate sums, only such sales or levies would be considered void as are made to satisfy the amount in excess of the judgment; for, though the execution direct the collection of a sum exceeding that
The first judgment in these cases was entered on the 28th day of June, A. D. 1861, for the sum of eight thousand five hundred and forty-five dollars and seventy-six cents, which included the sum of nine hundred and forty-five dollars and seventy-six cents interest. Upon this judgment an execution was issued directing the Sheriff to collect that sum with interest thereon at the rate of ten per cent, per annum from the time of its rendition. The sale of the defendants’ mill under it occurred on the first day of March, A. D. 1865, about eight months after the entry of judgment.
By this means interest for the period of about eight months was collected on the nine hundred and forty-five dollars and seventy-six cents interest included in the judgment, which amounted to the sum of sixty-one dollars and sixty-eight cents. The same error occurred in the execution issued in one of the judgments rendered on the 2Yth day of December, A. D. 1861, by which about seventeen dollars more than was authorized by the judgment was collected, making on the two executions about seventy-eight dollars more than was actually due on the judgments. Section 5, page 100, of the Statutes of 1861, expressly declares that only the original claim or demand shall draw interest after judgment. These executions direct the Sheriff to collect interest on interest, and the sale was made for an amount sufficient to satisfy the execution, and was therefore void. The sale was made as much to satisfy the seventy-eight dollars for which execution illegally issued as for that which was actually due. Had there been only sufficient property levied on and sold to discharge the amount legally due on the judgment the sale would doubtless be sustained, and only subsequent levies and sales made to satisfy the excess would be nugatory. But here the seventy-eight dollars for which execution was improperly issued is inseparable Horn the
The protection which the law extends to bona fide purchasers at judicial sales will not avail the purchaser in this case, for we consider the sale not merely voidable but absolutely void, and in such cases the sale will be set aside, even though the rights of bona fide purchasers have intervened.
Many other points are made by respondent to sustain the order of the Court below, none of which, however, we think tenable, nor necessary to be passed upon at this time.
The order of the Court below must be affirmed.
Opinion by
The judgment of affirmance is correct. In my opinion, however, an execution calling for payment of interest upon the aggregate amount of a judgment is not authorized, where (as in this case) the judgment of the Court is silent as regards the collection of interest. The judgment record should itself declare what the law allows.
Opinion by
I fully concur in the judgment, and also in the views expressed by the Chief Justice, in this case, with one exception. He thinks the sale was for some seventy-eight dollars more than was actually due on the 'judgment rendered. My opinion is that the sale was for some six hundred and seventy-five dollars in excess of the judgments.
These judgments were rendered on notes, and the judgments as entered of record called for so many dollars, without saying anything about interest. "When the Clerk issued the executions he directed the Sheriff to make out of the defendant’s property the amount of the judgments and interest thereon, at the rate of ten per cent, per annum, from the day the judgments were rendered until paid. This upon the two executions would amount to about six hundred and seventy-five dollars. Our statute in regard to interest contains the following clauses: “ When there is no express contract in writing,
“ Parties may agree in writing for the payment of any rate of interest whatever on money due, or to become due, on any contract. Any judgment rendered on such contract shall conform thereto, and shall bear the interest agreed upon by the parties, and which shall be specified in the judgment; provided only the amount of the original claim or demand sba.11 draw interest after judgment.”
The Chief Justice thinks that under the provisions of section 4, when a judgment omits to say anything about interest, the Clerk may, as a matter of course, without the order of Court, issue execution for the amount of the principal sum named and legal interest, for the reason the statute itself provides that the judgment shall bear ten per cent, interest, when there is no writing to show it must draw a different interest, and the only error in the execution in this case is in giving compound interest, or interest upon interest, which is expressly prohibited in section 5. My opinion is, the execution must follow the judgment, and if the judgment does not call for interest, the execution cannot.
If the Clerk can issue execution for interest not mentioned in the judgment, then he must go behind the judgment to see what the rate shall be.
First, he must go behind the judgment to see that he does not issue his execution for compound interest, for that is expressly prohibited by statute.
Then he must go behind the judgment to see what was the rate of interest agreed on in the original contract, out of which the judgment arose, for that rate of interest may have been more or less than ten per cent, per annum.
Suppose the judgment was on a note bearing interest at five per cent, per annum, the creditors would not be entitled to ten per cent, per annum. If, on the other hand, the note was
Besides, it is sometimes a contested point as to what was the rate of interest agreed on.
I remember to have seen one ease tried in California where the whole contest was, whether the note was to bear interest at ten per cent, per month or ten per cent, per annum. Had the Court failed to enter judgment for any interest, could the Clerk have determined what rate of interest the execution should bear ?
In my opinion, the execution must follow the judgment. The Cleric cannot go behind the judgment to see whether a part or the whole of the judgment is to bear interest, nor to see what rate of interest it is to bear.