Majority
p. 364Kimball vs. Munger.
Headnote
Where aji.fi. on a judgment in this court was delivered to the sheriff in June, under which he levied upon goods of the defendant, leaving them in the possession of the latter, but, in consequence of the plaintiff’s directions to the sheriff not to sell unless forced, to do so by subsequent judgments, nothing further was done until October following, when two other writs of fi. fa. ñora the common pleas were delivered to the sheriff against the same defendant: Held, that the fi. fa. in this court was dormant as against the others.And the sheriff having subsequently sold on all three of the writs, held further, that this court had power, on motion of the plaintiff in the common pleas, to prevent the sheriff from applying any of the proceeds upon the dormant fi. fa. until the others were satisfied.
A fi.fa. may be issued before the expiration of thirty days from the entry of judgment, by consent of the execution debtor; and he may so consent in despite of third persons.
Whether a person other than the party against whom a fi. fa. is issued can, in any case, avail himself of the objection that it issued prematurely, quere.
This court has power, on motion, to direct a judgment in the common pleas, or a justice’s judgment, to be set off against a judgment in this court.
Judgment in this cause was recovered in the supreme court against the defendant, and on the 18th day of June, 1841, a ji. fa. was issued to the sheriff of Columbia who made a levy upon the goods of the defendant and left them in his possession. Soon after, the plaintiff directed the sheriff not .to proceed to sell unless forced to do so by subsequent judgments until further orders, as an arrangement
p. 365moved, in behalf of McCagg, that the execution in this cause be postponed to the two executions in the common pleas, and that the proceeds of the sale be first applied upon the latter. He insisted that Kimball’s execution had become dormant in the hands of the sheriff, and cited Storm v. Woods, (11 John. R. 110;) Kellogg v. Griffin, (17 id. 274;) Rew v. Barber, (3 Cowen, 272.) cited Howell v. Alkyn, ( 2 Rawle, 282 ;) Power v. Van Buren, (7 Cowen, 560;) Grah. Pr. 2d ed. 382 to 384, and the cases there cited. He contended that McCagg’s executions were void, having been issued within thirty days from the rendition of the judgments. (Sess. haws of 1840, p. 334, § 24.) He further insisted that this court could not interfere, on motion, between judgments rendered in different courts. That the only remedy was by a suit at law against the sheriff for a false return. The statute which denies the right of issuing afi.fa. until the expiration of thirty days from the docketing of the judgment was intended for the benefit of the judgment debtor; it confers upon him a personal privilege of which he alone can take advantage. This court has power, on motion, to set aside the execution in this cause, or pronounce it dormant.
had been made which, if fulfilled by the defendant,' would prevent a sale. Afterwards one McCagg obtained two judgments on bond and warrant against the same defendant in the Columbia common pleas, and issued executions thereon on the 14th day of October, 1841, before the expiration of thirty days from the rendition of the judgments. These executions' were delivered to the same sheriff who soon after advertised and sold the goods under all three of the executions.
J. Gaul, Jr.,
M. T. ■,Reynolds, contra,
Gaul, in reply.
By the Court,
No doubt, on the facts stated, the execution in this court is dormant in respect to those in
p. 366
the common pleas; and the main question is, whether we have jurisdiction to declare the preference of the latter in this summary way. We have no direct control over the parties in the common pleas executions, nor of the sheriff, who, in respect to them, is an officer of the common pleas; but we have control over the plaintiff Kimball, against whom McCagg moves, and also over the sheriff in respect to the execution on the judgment in this cause. McCagg voluntarily submits himself to our order; and it will be enough for the sheriff’s purposes, if he be protected against an action at the suit of Kimball. He will be so protected by our order that he appropriate none of the proceeds to the satisfaction of Kimball’s execution till the others be satisfied. McCagg may, I think, take a rule to that effect. The case is like that of a party coming to set off his judgment in the common pleas against a judgment in this court. This is often done; and we have even extended the same practice to judgments in a justice’s court.[1]
It is objected that the two executions in the common pleas issued before thirty days from the time of entering the judgments respectively had expired, in violation of the statute allowing that time. What this objection might amount to were it urged by Munger it is not necessary to say, for he makes an affidavit in support of this application, and has evidently consented that the executions might go within the time; at least he has waived the irregularity. The statute enlarging the time for issuing execution was intended for the exclusive benefit of the debtor. It belongs to our system of delaying creditors and exempting property from their executions for the ease of the debtor. He may waive all legal delays and exemptions in despite of third persons.
Rule accordingly.
(a) (a) See Ewen v. Terry, (8 Cowen, 126 ;) Story v. Patten, ( 3 Wend. 331 .) Barbour's Law of Set-Off, 36, 37, and cases there cited.