13 W. Va. 805 | W. Va. | 1878
delivered the opinion of the Court:
Section 4 of chapter 122 of the Code, p. 593, which provides, that in any case, wherein there may be a judgment or decree for money on motion, such motion may be after ten days’ notice, unless some other time be specified in the section giving the motion, has no application to a motion to quash an execution. This certainly is not a motion for money. The costs, for which the judgment may be rendered, do not make it such a motion, for the motion is not made for the costs; but this is simply, as in every conceivable case, a mere incident to the motion of the plaintiff, when sustained, and may follow every successful motion, no matter what be its object.
The assumption by the appellant’s counsel, that this execution, when the motion was made to quash it, had already performed its functions, is not sustained by the record; for if the execution, and especially the return upon it, is, in the absence of any bill of exceptions, to be regarded as a part of the record (upon which I express no opinion) still the return shows, that the money, made by the sale of the property of one of the defendants, was still in the hands of the sheriff. But then if this return be regarded as a part of the record, the facts stated in it cannot be held to be true in this Court. The record shows, that evidence was heard at the trial of the case, and does not in any manner show the character of theis evidence. It may have shown, that this return was erroneous ; and it may have been so admitted by the sheriff. It could not have been more than prima facie evidence of the facts, stated in it, and could by leave of the court have been amended at any time. See Babbitt’s ex’r v. Winston, 1 Munf. 269.
It is urged by the appellant’s counsel, that in no case can a plaintiff move to quash an execution. He could, if he chose, it is argued by appellant’s counsel, have directed the sheriff to return it satisfied, but could not have moved to quash it. No authority is cited to sus
But if it were true, that the plaintiff’ could have directed the sheriff, in the case before us to return this execution satisfied, and therefore the court ought not to have quashed the execution, still this court could not have reversed this judgment, for on this supposition all the loss, the appellant could have sustained, would have been the costs of the motion, some $2.00 or $3.00 tor which judgment was rendered against. And of course no appeal would lie to this court to correct such an error.
But thisposition of appellant's counsel is inconsistent with another position assumed by him, that the endorsement by the clerk, that the execution was for the use of John B. Upton, was conclusive of the right of Upton to the benefit of the execution, and therefore that the plaintiff' in the execution, whose name he was bound to use in suing out the execution, could not control the same, as Upton’s equitable right, shown by the endorsement, would be recognized by the court of law; and Wallop’s adm’r v. Scarbrough et al., 5 Gratt. 1, is referred to, as sustaining this position.
If the fact stated in the notice existed, which we must in theabsence of any of the evidence presume was proved at the trial, to-wit: that the judgment had been satisfied before the execution issued, it is difficult to conceive, how it could thereafter be regarded in a court of law, as still in force and as justifying an execution to be issued thereon in favor of one of the defendants in the judgment.
The appellant must show affirmatively, that there was ■error in the judgment of the court. They cannot do so .in the absence of all the evidence, on which the court below acted. It must be presumed, that the plaintiffs below proved the facts stated in their notice; and therefore that its judgment is right. See Gunner et al. v. Turner’s adm’r, 21 Gratt. 382.
The judgment of the circuit court must therefore be affirmed; and the appellees must recover of the appellants their costs in this court expended, and $30.00 damages.
Judgment Affirmed.