Majority
p. 594Levin Pettyjohn v. David Bloxom, Administrator of Nathaniel Deputy, deceased.
Headnote
Judgment was recovered in the Superior Court, on which an execution was issued to the sheriff and a levy made by him on the defendant’s goods to the amount of the debt and costs. Afterwards, but before sale of the goods, the defendant sued out a writ of error and gave security, on which the judgment was affirmed in the Court of Errors and Appeals, and judgment of affirmance duly entered in the Court below. Held, that the writ of error was a supei'gedeas of the fi.fa. and levy on the original judgment in the Court below, and that a subsequent^, fa. issued on the judgment of affirmance, and levy and sale, was regular.Rule to show cause, &c. The defendant in the rule had recovered a judgment in the Superior Court for Sussex County, against Pettyjohn, the plaintiff in the rule, on which a writ of fieri fiadas had been regularly issued and levied on the goods of Pettyjohn to the amount of the debt and costs. Afterwards, but before the sale of the goods by the sheriff, Pettyjohn sued out a writ of error on the judgment, and gave security for the due prosecution of it, on which the case was removed to the Court of Errors and Appeals, and where the judgment in the Court below was afterwards affirmed and the record remanded. The judgment of affirmance in the Court above was duly certified and entered on the record of the case in the Court below,
p. 595In this case the second fi. fa., sued out upon the judgment of affirmance certified from the Court above to this Court, and entered here pursuant to the statute, was irregular and must be set aside; because the goods seized and levied upon under the former fi. fa. on the original judgment, were in the custody of the law, and the levy thereon being to the full amount of the debt and costs, was prima facie a satisfaction of the execution, and should have been disposed of by venditioni exponas before &njfi. fa. could or should have been issued on the judgment of affirmance. Under the constitution and laws of this State, a writ of error, even when security to prosecute it is given, is not a supersedeas of the proceedings in the Court below, but only a stay of such proceedings pending the writ of error. Const., art. 6, sec. 19; Revised Code, 379, sec. 17. A writ of error is no supersedeas of an execution issued on the judgment in the Court below and levied by the sheriff. Blanchard v. Myers, 9 Johns, 66 ; Kinney v. Whitford, 17 Johns, 34 . The general rule seems to he, that a writ of error operates as a supersedeas from the time of allowance, and stays proceedings in the Court below only until the errors are disposed of, but does not vacate an execution and levy on land. 2 U. S. Dig. 177, sec. 501.
pursuant to the statute; and on this judgment- of affirmance entered in the Court below, the defendant in the rule, without proceeding any further with his previous execution and levy under the original judgment, sued out a writ of fieri facias, which was levied on the goods of Petty-john, and after one or more writs of venditioni exponas issued thereon, the same were sold by the sheriff, and the money returned at the last term of the Court; at which term this rule was obtained to show cause wherefore this latter fi. fa., sued out upon the judgment of affirmance, and the writs of venditioni exponas and the sale of the goods thereon, should not be set aside for irregularity.
C. S. Layton, for the plaintiff in the rule:
p. 596Under the constitutional and statutory provisions of this State on this subject (and this question must be decided solely with reference to them, and not by precedents cited from other States), a writ of error as soon, as sued out and security is given for the prosecution of it, becomes a supersedeas of all executions and proceedings on the judgment in the Court below; for although the word stay, instead of the more technical phrase super sedeas,-is the term employed in the constitution, it means the same thing and nothing less. But the 8th and 9th secs. of chap. 110, Rev. Code, 390, 391, provide that the prothonotary of the Court below, to.whom a record, remanded with a duly certified copy of the proceedings and judgment of the Court of Errors and Appeals, is delivered, shall without delay file it, and enter upon the docket of the Court below, in connection with the entries of the cause in said Court, the said proceedings and judgment of the Court of Errors and Appeals, with the date of making such entry; and the entry so made shall be a record, and the judgment so entered shall have the same force and effect as a judgment of the Court below, and shall be executed by the process of the said Court in like manner as judgments of said Court. How, in this case the judgment of affirmance in the Court of Errors and Appeals was thus entered in this Court, with the additional costs which had accrued in that Court, and thereby became in effect, under thesé provisions of the statute, a judgment of this Court, to be executed in like manner and by the same process as the original judgment; or in other words, it became a second and subsequent judgment on the records of this Court for one and the same debt, with an additional taxation of costs; and must it not therefore be held to be itself a supersedeas of the original' judgment and all the proceedings upon it previous to the issuing of the writ of error, and would it be competent to treat it as a still subsisting judgment of this Court, on which any further executions or proceedings whatever could be taken to enforce the collection of it, when the judgment of a
W. Saulsbury, for the defendant in the rule:
p. 597higher court and of superior jurisdiction and of later recovery stood beneath it on the record for the same identical debt ? Not only was the writ of error a supersedeas of the execution and levy on the original judgment, but is not this judgment of affirmance necessarily a supersedeas of that judgment and of -all'the proceedings upon it prior to the removal of the case to the Court above ? and as a once subsisting judgment for the recovery, enforcement and collection of the debt by any execution process whatever upon or by virtue of it, is it not .practically engrossed and extinguished by the subsequent judgment of affirmance for that debt with the additional costs incurred in the Court above ?
By the Court,
The rule must be discharged. At common law a writ of error was a supersedeas of all proceedings on the judgment in the Court below, from the time it was sued out and notice of it was served on the adverse party; and this, too, without security for the prosecution of it. Afterwards, by Parliamentary enactments, security or bail for the due and faithful prosecution of it in the Court above, was required in order to render the writ of error a supersedeas of the proceedings on the judgment in the Court below. But after these enactments, when the bail or security was given, it had the same effect as a supersedeas, which it originally had at common law without it; and the only object of our constitutional provision on the subject, was to change this common law rule, as it had before been changed by statutory provisions in England. The meaning and effect, therefore, of this provision of our State constitution is, that when sufficient security is given for the prosecution of it, the writ of error shall be a supersedeas of all proceedings on the judgment in the Court below. It is true, that if an execution issued upon it is executed before the writ of error is sued out, it may be returned to the Court below afterwards; but so long as it remains executable, but not executed, a writ of error with security for its prosecution*,is a supersedeas of it. 2 Tidd’s
p. 598
Pr. 1072; Lane et al. v. Bacchus, 2 T. R. 44. The term adopted in the constitution is stay instead of supersedeas, as was observed by the counsel for the.plaintiff in the rule; but the difference is only verbal, for it means the same thing. If the judgment below is reversed in the Court-above on the writ of error, of course, there is an end of it as a judgment, with all unexecuted process depending upon it when the writ of error was issued and the security given; but if it is affirmed, then the judgment of affirmanee is entered as a judgment on the record of the case in the Court below, to be executed in like manner and By the same process as a judgment of that Court, and is to have the same lien and éffect under the statute referred to, Rev. Code, 390, 391, secs. 8, 9 & 10, as a judgment of that Court. Butin the latter case the judgment of affirmance stands in lieu of and becomes the substitute, and not the duplicate, of the original judgment, and all the subsequent proceedings and process must be had thereon for the collection of the debt, in which the costs accruing on the original judgment, with the interest, are added to the costs incurred on the writ of error in the Court above, and execution issued for the debt and costs as thus ascertained.