31 Miss. 440 | Miss. | 1856
delivered the opinion of the court.
This was a motion made in the Circuit Court of Yazoo county to quash an execution.
The execution in question was issued on the 14th day of October, 1852, upon a judgment recovered on the 20th of May, 1845, in said court, by Cleveland, Lewis & Co., against N. Gr. Nye, the appellant.
The grounds upon which the motion was based were: First. There was an illegal taxation of costs. Second. A greater rate of interest was demanded by the execution than was authorized by the judgment; and, Third. “ No valid alias fi. fa. had issued on said judgment within seven years, from' the 26th of June, 1845, the date of the issuance of the first execution.” The motion was
The last ground taken in support of the motion is the only one relied upon in the argument at bar.
It is shown by the record, that an execution was issued upon the judgment, on the 26th of June, 1845, which, of course, was within one year from the rendition of the judgment. The record shows, also, that an alias fi. fa. was issued on the 18th of March, 1852, returnable to the following May term of the said Circuit Court; which, upon motion of the defendant in the execution, entered at said term, was quashed, for a defect in the execution, which rendered it voidable, but not absolutely void.
The last execution which issued upon the judgment,- and which was the subject of the motion to quash, was issued on the 14th of October, 1852.
That execution was therefore not issued within seven years from the date of the first execution. No other exception had issued, except that of the 18th of March, 1852. The motion therefore should have been sustained, unless the statute bar was prevented by the issuance of this latter execution.
For the appellant, it is insisted, that the execution of the 18th of March, 1852, having been annulled by a judgment of the court, which remains unreversed and in full force, must be treated as a nullity; and hence, ineffectual to prevent the operation of the statute.
If the execution in question were absolutely void, and not merely erroneous and voidable, the correctness of this position would be incontrovertible. Process absolutely void — void ab initio — could in nowise affect the rights of either party to the controversy. But it is not pretended'that the execution was absolutely void, but only voidable. And it is settled, that an execution which is simply voidable, and not void, is to be held valid until it is avoided. Harrington v. O’Reily et al., 9 S. & M. Rep. 216. A levy and sale under the execution, to a stranger, would, unquestionably, have passed the title. It cannot be said, therefore, that the execution of the 18th of March, 1852, when it went into the hands of the sheriff, was a nullity. It was effective for all purposes until
Judgment affirmed.
