Hathaway v. Howell

Headnote

Execution—issued before entry of judgment.

Appeal from a judgment in favor of defendant, entered on the report of a referee.

This was an action to recover the possession of certain hotel furniture, of the value of $10,000.

The case was once before tried, and the defendant had judgment', which was affirmed at the General Term, but reversed by the Commission of Appeals.^[1]

The defendant, as sheriff of Chemung county, justified taking and holding the property under and by virtue of an execution against one Slater, dated May 26,1866, reciting a judgment of that date as the basis for its issue. It was shown that papers were prepared for obtaining a judgment, by confession, on Saturday evening, May twenty-sixth, and left in the clerk’s office to be entered up after hours, but was not and could not be perfected until eight o’clock, Monday the twenty-eighth. This execution was issued and delivered to the sheriff on May twenty-sixth, with directions to levy, and a levy was made on that day. On the former appeal, the Commission held^[2] that an execution did not vest any right or title to the execution debtor’s property in the sheriff until actual levy made; and that a levy must be made during the life of the execution ; that the execution was void; and that no title was acquired by the sheriff by his levy on the twenty-sixth. That the judgment against Slater did not become perfected until eight a. m., on the twenty-eighth, arid no levy was shown to have been made after that date within the life of the execution.

On the second trial, the défendant undertook to show that a new levy was made with this execution after eight o’clock on Monday, the twenty-eighth.

The question passed, on by the General Term was the sufficiency of the evitieñóe on' the sécond trial "to ‘establish a levy on May twenty-eighth. The court was of opinion that that fact was not