Inman v. McNeil, 57 How. Pr. 151

Inman v. McNeil

57 How. Pr. 151 | N.Y. Sup. Ct. | 1879

Landon, J.

It is necessary for the plaintiff to prove a judgment upon which the execution issued. Whatever right the plaintiff has rests upon that judgment (3 Denio, 45; 7 Hill, 35). The officer has been permitted, when sued for a *152false return, to show that the execution was issued upon avoid judgment (Allen agt. Ward, 8 Mass., 79; and cases cited in Earl agt. Camp, 16 Wend., at page 568). If there is no judgment there is no loss and if the defendant McReil has not injured the plaintiff there ought to be no recovery. A reversed judgment is no judgment. But it is urged that when che execution was issued the judgment was in being and the officer neglected to do his duty. This is true, but the reversal of the judgment, fortunately for the officer, occurs before the trial of this action and enables him to show from the record that no valid judgment exists, although one has existed. The plaintiff, being bound to prove the existence of a valid judgment, fails upon the whole evidence .and, therefore, proves nothing to uphold the execution. If the trial had been sooner the defendant would have no defense, but he has been permitted to show, what subsequent facts proved to be the truth, that the plaintiff was not injured by any negligence of the officer and if the plaintiff is without injury he is without action.

Judgment is directed for the defendant.