18 Wis. 406 | Wis. | 1864
By the Court,
“ Personal property shall be bound from the time of its seizure on execution.” R. S., ch. 134, see. 18. Before seizure there is no lien — nothing by which the rights of different execution creditors, whether senior or junior, can attach. The lien takes effect from the date of the levy and by virtue thereof, and of course is confined to the execution levied, and can have relation to no other. Such lien is prior and superior to that of every execution subsequently levied, and consequently not liable to be defeated by such subsequent levy, though made upon a senior execution. This point, if not decided, was strongly intimated in Russell v. Lawton, 14 Wis., 209. It follows that the court was right in rejecting the record and proceedings upon the motion to have the money made on Cooper’s execution applied on that of the plaintiff. The court had no power to make such application, and was bound to deny the motion. The plaintiff having wholly mistaken his remedy, the decision upon the motion was no bar to this suit, and that was the only purpose for which the record and proceedings were offered.
As to the duty of the sheriff in making the levy, we are
The question of deducting the sheriff’s fees from the value of the property as found by the court, was not made at the trial, and is not presented by the exceptions. The exception to the third conclusion of law is too general for this purpose. Where an instruction or conclusion of law is in general correct, but subject, perhaps, to modification in some particular or par-
Judgment affirmed.