Finch v. Graves

Headnote

An execution will be set aside with costs if issued within thirty days after judgment is perfected, there being no consent by defendant that it may issue.

Motion by defendant to set aside an execution and subsequent proceed ings.— Judgment was perfected against defendant 29th April, 1845.

An execution was issued thereon, and delivered to the sheriff on the 3d day of May, following. The sheriff’s deputy had proceeded and levied on the property of defendant. Defendant denied ever having given consent that execution might issue. Plaintiff stated that before and after the judgment was perfected in the cause, the defendant had incumbered his personal property by mortgages, in order to avoid the payment of the judgment; and his real estate being encumbered for near its value, there was no prospect of plaintiff’s realizing any thing only by means of defendant’s personal property; that after the execution had been issued, and about the middle of May, plaintiff’s attorney learning that the property on which he had ordered the sheriff to levy, was mortgaged, he directed the sheriff to return the execution to him, which was done, and alleged that the defendant had not been put to any inconvenience by reason of it. Defendant’s attorney offered plaintiff’s attorney on the 24th May, to withdraw the motion on plaintiff’s paying five dollars for preparing the papers. Plaintiff’s attorney declined doing so, but offered to endorse five dollars on the judgment, provided the defendant had been put to any expense or inconvenience, in consequence of the issuing of the execution, which defendant’s attorney declined to do.