16 Minn. 426 | Minn. | 1871
By the Court
Section 13, chapter 64, General Statutes requires an execution to be “dated on the day on which it is issued.” The defendant says that the execution under which plaintiff claims was void, because not dated on the day of its delivery to the sheriff, w'hich is claimed to be the day of its issue in the meaning of the statute. We think, however, that the day on which the execution was taken out of the clerk’s office, was the day “ on which it issued,” in the intent of the statute. The dating is done by the clerk, which implies that the date is within the clerk’s knowledge at the time of making out the execution. As the clerk knows when the execution is issued in the sense of being taken from his office, and cannot know when it will be issued in the sense of being delivered to the sheriff, it would seem to follow, necessarily, that he is to affix the date of the former act, not the latter. The execution was then properly dated in this instance.
Defendant further urges that the execution was void, because it did not state the true date of docketing the judgment in the county to which such execution ran. It is difficult to see why the statement of the date of such docketing is of any importance, where the levy is made, as it was in this case, upon personal property exclusively. At most, the omission under such circumstances to comply with the requirements of the statute as to such statement, could be nothing more than a purely technical irregularity, injuring nobody, and amendable as a matter of course, under sections 104,105, chapter 66, General Statutes. Such omission could not possibly be permitted to render the execution void.
But even though the execution be taken from the clerk’s office before such docketing, if it be levied on personal property only, and is not delivered to the sheriff until after such docketing, it is impossible to regard the failure to comply with the statute as fatal to the validity of the execution, or as anything worse than a harmless irregularity. These views render it unnecessary to consider the effect of the amendment of the docket allowed by the court below; and as to the point raised in reference to the finding of the referee, that the levy was made March 24th, we will only say, that the finding is sufficiently supported by the sheriff’s return.
The remaining branch of appellant’s defence rests upon the fact that he took the property in controversy as mar
Judgment affirmed.