Majority
p. 212George A. Messick and Laura M. Messick, d. b. v. Robert L. Coulter, p. b. (May 7, 1921.) Rice and Heisel, J. J., sitting. Superior Court for Sussex County, April Term, 1921. Certiorari, No. 26,
Headnote
Justice of The Peace — Certiorari to Set Aside Execution Only not Execution Cannot Stand Without Judgment As Basis.Where the justice did not give judgment for plaintiff according to the report of referees, but issued execution on their finding, and defendants bring certiorari only to set aside the execution, the writ will not be dismissed, but the execution will be vacated and set aside for lack of judgment on which execution could issue.
John M. Richardson for defendant below.
Andrew J. Lynch for plaintiff below.
Action before a justice of the peace by Robert L. Coulter against George A. Messick and Laura M. Messick. Trial by referees, who made report under their hand in favor of the plaintiff. The justice did not give judgment according to their report but issued execution on their finding. Defendants bring certiorari. Motion to dismiss certiorari denied, but execution vacated and set aside.
The exceptions filed were to the effect that the justice issued execution against the defendants without first having rendered a judgment against them upon the report of the referees, as required by the statute, Rev. Code 1915, § 4012.
The record disclosed that on March 16, 1921, the case was tried by referees who found in favor of the plaintiff for $65.16 and so returned in writing to the justice, which return is set out in the record, but no judgment was entered thereon by the justice; that on the same day the execution sought to be set aside was issued, directed to the constable.
Counsel for plaintiff below moved that the certiorari be dismissed on the ground that it appeared from the record that no judgment was entered by the justice. Ruhl v. Cooper, 6 Pennewill, 42 , 63 Atl. 575 ; Marker v. Collins, 7 Boyce, 478 , 108 All. 275 .
p. 213
Opposed to the motion, Spear v. Hill, 2 Marv. 150 , 42 Atl. 424 , was cited.
We are of the opinion the certiorari should not be dismissed.
In the cases cited by counsel for the motion the writ of certiorari was issued for the purpose of setting aside the judgment, but in this case the object of the writ is to set aside the execution only, as was done in Spear v. Hill. We decline to dismiss the writ. It appearing from the record that there was not a judgment upon which an execution could issue, execution issued in this case is vacated and set aside.
Cases cited
- Spear v. Hill 2 Marv. 150 p. 213