16 Wis. 465 | Wis. | 1863
By the Court,
The question presented by this caséis, whether an execution issued upon a dormant judgment, withont leave of court, is void or only voidable. If void, no sale can be made un ler it, and the purchaser acquires no title, But if voidable, the sale may be valid, notwithstanding the omission to obtain leave. We are of opinion that such an execution is merely voidable, and therefore that no advantage can be taken of the irregularity, except in a direct proceeding to set it aside.
The rule at common law is well known. If the plaintiff failed to take out execution within a year and a day, extended in many of the states, by statute, to two years from the time the judgment became final, it could not be regularly issued thereafter, without revising the judgment by scire facias. The rule was founded upon a presumption that the judgment had been satisfied, which drove the plaintiff to a new proceeding to show that it had not; and yet it was invariably held, that an execution taken out after that time, and without scire facias or judgment of revivor, was not null, but simply irregular. The defendant might, if he desired, interpose and set it aside upon motion; but if re neglected to do so, it was considered an implied admission that the judgment was still in full force. He might waive the irregularity, and thus avoid the expense of a scire facias. See Irwin’s Lessee vs. Dundas, 4 How., 79; and Doe vs. Harter, 2 Carter, (Ind.) 252, and the cases cited.
But the code (sections 192 and 193 of the original act, now sections one and two, of chap. 134, R. S.), prescribes a different practice, and it is upon this that the counsel for the defendants chiefly relies. When the execution in controversy
Judgment reversed, and a new trial awarded.