57 Iowa 493 | Iowa | 1881
That an execution had been issued, and a sum of money realized by a sale of property before the return day of the execution, which has not been credited on the judgment, is admitted by the demurrer. It is, however, said by counsel for the appellee the statute only applies where the first execution was in existence at the time the second issued, and that an execution is not in existence when the return day has passed. That to exist is “to live, to have life or animation.” We incline to think this is so. But an execution has sufficient life to sustain a sale made after the return day, if the levy was made before. For some purposes then, an execution lias an existence after the return day. If for any purpose, the statute applies. We, therefore, think an execution must he regarded as existing until it has been returned.
Under the statute it is not material, whether a levy had been made under the outstanding execution or not, or, if made, whether the property had been sold or not. While one execution is in existence another cannot issue. This is the rule. There may be exceptions, however, to such rule. The execution may have been lost or destroyed, but if so, a return of that fact could be made. But there may be cases where this could not be done. If so, we think it devolves on the plaintiff in execution, or the party claiming under the sale, if it is essential as to him to be shown, to allege and prove the facts which it is claimed avoid the statute.
IV. We are at a loss to know why the execution was issued for $428.88 more than was called for or due on the judgment. That the execution for this.reason should be quashed on motion, we are inclined to think, but whether the sale should be set aside for this reason, we do not determine, because un
Reversed.