8 Blackf. 169 | Ind. | 1846
Motion to set aside an execution, levy, and sale. Motion granted. The facts were as follows: On the 29th of September, 1840, Taylor, Freeman, and Co., recovered a judgment in the Circuit Court against G. N. Martin for 517 dollars and 92 cents in debt. On the first day of November, 1841, an arrangement was made between the parties to the judgment, C. Martin, and Sanford, in consequence of which the two latter, under their hands and seals, made the following entry on the order-book of the Circuit Court, in vacation, in the presence of the clerk and immediately under the judgment, viz., “We, the undersigned, hereby acknowledge ourselves replevin-bail and security for the payment of the above judgment and interest in manner following, to wit, one hundred dollars within sixty days from this date, and the balance thereof in three equal annual instalments in one, two, and three years from this date; provided that no execution shall at any time issue for any greater sum than shall be actually due upon said judgment, according to the foregoing stipulations, at the time of the issuing of said execution.” On the 28th of May, 1844, an execution was issued upon the judgment and entry aforesaid against G. N Martin, C. Martin, and Sanford, on which the sheriff levied and sold land belonging to C. Martin and Sanford; Taylor, one of the execution-creditors, being the purchaser. The motion to set aside the execution, levy, and sale, was made by C. Martin and Sanford.
The statute governing this cause provided, that a judgment-debtor should have the privilege of a stay of execution on a judgment for more than one hundred dollars, for one hundred and eighty days from the date of the judgment, by causing one or more sureties to enter themselves on the record, in open Court, or before the clerk in vacation, bail for the payment of the judgment, interest, &c.; that such entry should
An entry of bail for the stay of execution is entirely a matter of statutory regulation; and to have the effect given it by the statute, it must conform to the statute. The judgment against G. N. Martin had ceased to be repleviable several months before C. Martin and Sanford made the above-mentioned entry on the order-book. Their undertaking therefore was not within the statute; and whatever force it may have as a contract (a matter which we do not decide) it cannot stand as a judgment, or be the foundation of an execution. The Circuit Court was correct in setting aside the execution, levy, and sale.
The judgment is affirmed with costs.
