Bell v. Bell — 1 How. Pr. 71

Majority

p. 71

William A. Bell, administrator, &c. vs. Charles A. Bell.

Headnote

A release of errors in a warrant of attorney, does not authorize the issuing of a fi. fa. within thirty days from the entry of judgment ; but, if directions are given by the defendant as to the payment of the money collected or to be collected on the fi. fa., which is issued in less than thirty days from the entry of judgment, the irregularity is waived.

Motion by defendant to set aside execution.—The defendent moves to set aside execution issued on a judgment confessed on bond and warrant of attorney, on the grounds that it was issued before the expiration of thirty days after the entering of judgment. The plaintiff insists that the release of errors in the warrant of attorney authorized the issuing of the execution at any time, and releases all errors in the issuing, as well as the form of execution.

We have decided that point against you.

The plaintiff then read affidavit, showing that after the fi. fa. was issued and a levy made by the deputy sheriff, the deputy sheriff told defendant that he had received notice from plaintiff’s attorney that some of the money to be collected must be paid to plaintiff’s attorney, and not to the plaintiff. To this the defendant replied, that the deputy sheriff must not pay any thing to plaintiff’s attorney, but must pay all he collected on the fi. fa. to the plaintiff in person.

Nelson, Chief Justice.—That was a waiver of the irregularity.

Decision.—Motion denied, with costs.