Valkenburgh v. Harris — 3 Denio 162

Majority

p. 162

Van Valkenburgh vs. Harris & Harris.

Headnote

A fi. fa. cannot issue on a judgment in scire facias quare executionem non, until thirty days after the entry of the judgment, the act of 1840 (Session Laws,p. 334, § 24,) being applicable to such executions, as well as those in original actions.

Motion to set aside a fi.fa. issued on the same day on which judgment in scire facias quare executionem non was perfected, the defendants’ counsel insisting that the plaintiff should have, waited thirty days, as required by the act of 1840.

P. Cagger, for the motion.

J. Koon, for the plaintiff,

argued that the act referred to had no application to judgments on scire facias, as the execution issues upon the original judgment. He referred to 2 R. S. 576, § 1

The entry on the roll, in a case like this, is that the plaintiff have execution against the defendants according to the force, form and effect of the former recovery, and that he also recover costs on the scire facias. (2 R. S. 576, § 1; id. 612, § 3.) It is, in strictness, a judgment for execution according to the first recovery, and for costs. (Philipson v. Mangles, 11 East, 516.) The execution must issue upon the judgment on the scire facias, and not on the original judgment. (Davis v. Norton, 1 Bing. 133.) The case is within the act of 1840, and a writ of fieri facias cannot regularly issue, until after the expiration of thirty days from the entry of the judgment. (Laws 1840, p. 334, § 24.) This execution must be set aside, with costs.

Motion granted.