63 Ind. 229 | Ind. | 1878
Motion to set aside an execution and levy.
The motion is not made by the execution defendant.
The plaintiffs, in this motion, state, that, on the 2d day of December, 1875, they obtained 'a judgment for'over-two hundred dollars against one George B. Roach, and caused an execution to issue thereon; but that the constable, to whom said execution was delivered, could not levy the same because the personal property of the execution-defendant had been taken possession of by the sheriff, on an execution issued against said defendant Roach at an-earlier hour of the same day than was that to the constable, on a judgment rendered by the circuit court of said county, of Tippecanoe.
The objections to the execution from the circuit court to-the sheriff are thus stated in the motion:
_ “ That said judgment, in favor 'of said Carnahan and Murphy, against said Roach-, was recovered-on the morning-of said 2d day of December, 1875; that, immediately thereafter, on the 2d day of December aforesaid, said Carnahan and Murphy caused execution to issue on the said judgment against said Roach, and to be placed in the hands of said Christian M. Hicely, the sheriff' of Tippecanoe county,. State of Indiana; that said sheriff levied said execution,, on said 2d day of December, 1875, on a certain stock of boots and shoes, the personal goods and chattels of said Roach, in the store of said Roach in the city of Lafayette,. Indiana, of great value, to wit, six hundred and two dollars ; that said stock of boots and shoes comprised all the personal estate of said Roach subject to execution, and in-*231 eludes tlie same personal chattels of said Roach which have been levied upon by the constable aforesaid, on the execution issued as aforesaid, in favor of said petitioners against the said Roach; that said sheriff claims that the levy of his said execution was made prior to the levy of the execution in favor of your petitioners by the constable aforesaid; that said goods and chattels are now in the possession of said.sheriff, and that he will proceed to advertise and sell the same, unless prevented therefrom by the interposition of this court; and your petitioners say, that the said execution in favor of said Carnahan and Murphy, now in the hands of said Nicely, sheriff aforesaid, was improvidently issued, and .is void, for the following causes, to wit:
“ 1. That the same was issued on the said 2d day of December, 1875, before the clerk of said Tippecanoe Circuit Court had drawn up the proceedings of said court for said day, before the same had been publicly read in open court, and before the proceedings of said court had been duly signed by the judge thereof for said day.
“ 2. That the said execution was issued in favor of said Carnahan and Murphy, against said Roach, before their said judgment against Roach had been publicly read in open court and signed by the judge thereof.
“ 3. That said judgment, in favor of said Carnahan and Murphy, was signed by the judge of said Tippecanoe Circuit Court, and said execution issued thereon, before said judgment had been publicly read in open court, as the law directs.
“ And your petitioners further say, that the levy of the execution aforesaid, in favor of said Carnahan and Murphy, against said Roach, is illegal and void for the causes following,to wit: That the said levy was made by the sheriff as aforesaid, the said execution issued, and the said judgment signed by the judge of the said Tippecanoe Circuit Court, before*232 said judgment had been publicly read in open court, as the law directs. "Wherefore your petitioners pray that said execution may be set aside, and said levy vacated,” etc.
It is admitted in the motion, that a valid and accurate judgmentwas recovered by Carnahan and Murphy, against Roach, on the morning of the 2d day of December, 1875. It is not denied that said judgment was duly recorded, nor that it had been read and signed by the court, before the execution issued ; but the complaint is, that it had not been publicly read and signed in open court, and it is insisted, that, for this reason, the execution was void.
A demurrer was sustained to the motion, and judgment overruling it rendered.
Error is assigned upon this action of the court.
The following is a section of the circuit court act, 2 R. S. 1876, p. 6, which was approved June 1st, 1852:
“ Sec. 22. It shall be the duty of the clerk of the circuit court to draw up each day’s proceedings at full length, and the same shall be publicly read in open court, after which they shall be signed by the judge; and no process shall issue on any j udgment or decree of the court until it shall have been so read and signed.”
The code of procedure act was approved June 18th, 1852, the 405th section of which is as follows, 2 R. S. 1876, p. 197:
“Writs of execution, as now used for the enforcement of judgment, are modified in conformity to this chapter [article], and any party in whose favor judgment’has heretofore been, or may hereafter be rendered, may, at any time within ten years after the entry of judgment, proceed to enforce the same, as prescribed in this chapter [article].”'
This section is as originally enacted, except that ten years have been substituted for five, as the time within which execution may issue afte. judgment. It is contended that this
"We are satisfied said section 22, relied upon by appellants, is directory, and that the execution issued in this case, while it may have been irregular, was not void. We say it may have been irregular. The facts as to how, when or where the judgment was read, are not stated in the motion, but simply a conclusion of law. The presumption is, that the judgment was duly read and signed.
In Nave v. King, 27 Ind. 356, it is said
“ In The People v. Allen, 6 Wend. 486, the court, as we think, correctly laid down the general rule to be, that where the statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory, unless the nature of the act to be performed, or the language used hy the Legislature, shows that the designation of time was intended as a limitation of the power of the officer.”
The cases bearing upon the question of the validity of the execution, in the case before us, are quite numerous, and, as we think, they establish two propositions:
1. That the execution may have been irregular, but not void; and,
2. That no one not a party to such execution can object to it.
The cases are collected in Freeman on Executions, section 25, to which work we refer for a statement of them. The author says : .
“ An execution issued in Massachusetts, in violation of the statute directing that ‘ no execution shall he issued within twenty-four hours after the entry of the judgment,’ was adjudged to be void, and the title derived therefrom*234 was disregarded. Penniman v. Cole, 8 Met. 496. In the same State, a justice of the peace, who issued execution within less than twenty-four hours after the rendition 'of judgment, was held liable therefor in an action of trespass. Briggs v. Wardwell, 10 Mass. 356. But a very decided preponderance of the authorities is against the first decision above referred to, and in favor of the proposition that the premature issuing of an execution is an irregularity merely. The execution is erroneous, but,like an'erroneousjudgment, it must be respected, and may be enforced, until it is vacated in some manner ]i rescribed by law- No one but the defendant can complain of it; and even he can not do so in any collateral proceeding.” He cites Wilkinson’s Appeal, 65 Pa. State, 190 ; Lynch v. Kelly, 41 Cal. 232; Blaine v. The Ship Charles Carter, 4 Cranch, 333; Carson v. Walker, 16 Mo. 85; Bacon v. Cropsey, 7 N. Y. 199. See, also, Mariner v. Coon, 16 Wis. 490; Jones v. Davis, 24 Wis. 229 ; Doe v. Harter, 2 Ind. 252; Willson v. Binford, 54 Ind. 569.
The cases cited in Freeman, supra, support the text.
We may properly call attention to the fact that section 22 of the circuit court act contains two clauses: the first directing each day’s proceedings to be drawn up, read in open court and signed by the judge; the second declaring that no process (execution) shall issue on any judgment or decree till it has been so read and signed, contemplating that single judgments or decrees may be read and signed separately from the whole proceedings, so that execution may issue thereon. Hunter v. The Burnsville Turnpike Co., 56 Ind. 213.
The judgment is affirmed, with costs.
