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Shooke v. Phillips

5 Cow. 440 Court N.Y. Sup. Ct. English

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p. 440
Shooke against John Phillips and others, heirs and devisees of William Phillips, deceased. Allendorf against The Same.

Headnote

Where judgment is obtained against heirs, or devisees, part of whom are infants, and part adults, execution may go against the latter immediately, the statute (1R. L. 318) applying to the infant defendants only.
The Judgment was perfected against the defendants, as heirs and devisees, in February term last. John Phillips was an adult; the other defendants were, and still are infants. The plaintiff’s attorney issued executions against all the defendants within the year; contrary to the statute (sess. 36, ch. 93, s. 6, 1R. L. 318.)
On the 27th of April (Thursday) the defendants gave notice of a motion to set aside the executions.
On Thursday or Friday (the 27th or 28th of April) the plaintiff’s attorney withdrew the executions from the hands of the sheriff, nothing having been done upon them; and altered them, so that they stood against John Phillips, the adult only; he (the attorney) having issued the executions by mistake, without adverting to the statute which requires a jrnar’s delay of execution against infant heirs. On the same day he gave notice of the alteration to Mr. Wheeler, the attorney of John Phillips, and guardian ad litem of the other defendants ; and offered (by stipulation in writing) to pay the costs which had accrued about the motion.
J. W. Wheeler, now moved to set aside the executions;
and he insisted that executions could not go even against the adult, until after the year; the statute being, that no execution, in any cause, issue within one year after the rendition
p. 441
of the judgment. The withdrawing of the executions extended only to the infants. They should also have been withdrawn as to the adult.
G. A. Shufeldt, contra.

The statute was clearly m tde for the protection of the infants only, not adults, whether joined with them or not. The motion must be denied.

Rule in each cause ; that the motion be denied; that the plaintiff pay the costs of the defendants’ motion up to the time when the offer to pay was made.

No costs of this motion.