35 Vt. 491 | Vt. | 1863
The decision of this ease depends on the answer to the question whether the plaintiff was entitled to an execution on his judgment against Hawley, on the 30th of December, 1856, when that execution was issued. It is conceded that if that execution was irregular, or was prematurely issued, the personal property attached on the original process, was not duly charged in execution, and that no action can be maintained against the defendant for the neglect of its constable who made the attachment, to have the attached property forthcoming “ to respond the judgment” on which the execution was issued. The plaintiff recovered his judgment against Hawley at the November term of the Chittenden County Court in 1856, and, on the trial which resulted in this judgment, he took exceptions to certain rulings of the court, and an entry was made on the county court docket as follows: “ Exceptions by plaintiff,— exceptions allowed, and execution stayed.” After the judgment was rendered, and after this entry was made on the docket, the county court, on the 29th of November, 1856, adjourned its session, for the completion of the business of the term, to the 24th of January, 1857, having previously, on the day of adjournment, made an order which was entered on the docket allowing executions on judgments then “ consummated” to issue immediately. On the said 24th of January, l.- 57, the court met pursuant to adjournment, and continued in daily session until the 27th of January, 1857, when it finally adjourned. The plaintiff never filed any exceptions in his suit against Hawley, and on the 30th,of December, 1856, during the recess of the court, as above mentioned, his attorney informed the clerk of the court that the plaintiff waived his exceptions in that suit, and requested the clerk to erase the entry of the same from the docket, and to issue an execution on the judgment in the suit, which the clerk accordingly did, the execution being issued and dated on the same 30th of December, 1856. The statute pr wides that execution “ shall not, of course, be stayed ” by the allowance of
Judgment of the county court for the defendant affirmed.