Majority
p. 114In re Greensbury W. Freeny and William Sheppard, assignees. Sussex County, October Term, 1895. contended that the statute provided for a recognizance in the certiorari and the debt below becomes merged in the higher grade; a mere stay is where no bond or recognizance is given. contended that a certiorari acts simply as a suspension of proceedings below and does not destroy the lien of a levy made before the certiorari issued; and that it has always been the practice of the Court to have a procedendo issued immediately after affirmance of the judgment, and the plaintiff proceeds just where he left off. 24 A. & E. Encyc. of Law 597; 1 Freeman, Executions § 32; Runyon vs. Bennett, 29 Am. Dec. 431 .
Headnote
Certiorari. Lien.—A certiorari does not not destroy the lien of a levy made before the certiorari is taken. It simply acts as a suspension of proceedings below.This was a petition to draw money out of Court. A judgment was rendered by a Justice of the Peace against Jerome C. Elliot on October 11,1892. An execution fi. fa. was issued on said judgment and levy made on the same day. The same was returned March 1, 1893. Same date venditioni exponas ISTo. 1 was issued, returnable July 1, 1893. On May 17,1893, a certiorari on said judgment was taken out. After the certiorari was issued and before affirmance of judgment by the Superior Court a junior execution creditor levied upon the same goods and they were sold by the Sheriff and the money paid into Court. Judgment below was affirmed in the certiorari.
An application being made to take the money out of Court, R. G. White, for the owner of the real estate,
William H. Boyce, for the petitioners,
The lien is preserved. Its effect is not destroyed, but the proceedings are only suspended by the certiorari. After affirmance there is a right to proceed on the judgment below. Let the order be made.