Imagens das páginas
PDF
ePub

transcript, the costs of serving the notice of appeal, and the printer's fee for publication, are a part of the costs of the Supreme Court. (574)

666. Execution from Supreme Court-Return. 658. Executions issued from the Supreme Court shall be the same as those of other Courts of record, and shall be returnable as in other cases. (579.)

667. Money judgment-Execution when. 634. In all cases appealed to the Supreme Court, where the judgment below has been for the recovery of money, and the same shall be fully and unconditionally affirmed in the Supreme Court, the Clerk of the Court below shall be authorized to issue execution on said judgment as soon as the certified copy of the opinion and judgment of the Supreme Court, so affirming said judgment, shall be filed in his office.

668. Order to inferior Court for transcript and papers. 664. Any appellate Court shall have full power to compel any inferior Court, board, or officer exercising judicial functions, or other person, to certify to such Court a full and complete transcript of the records and proceedings of any such tribunal, board, officer, or person, and the production of any paper, whenever it shall be necessary for the proper determination of any cause or proceeding pending before the appellate Court. The breach of any order may be punished as a contempt. (585.)

1. Special findings, without request of one of the parties, must be considered on appeal as general findings.- Grover, etc., S. M. Co. v. Barnes, 49 Ind. 136.

2. A rehearing will not be granted, to allow a certiorari.- Merrifield v. Weston, 68 Ind. 70.

3. A brief should refer to that part of the record relied upon for error.- Sanders v. Scott, 68 Ind. 130.

4. Statements of the Clerk not in the course of judicial proceedings, though copied into the transcript, are no part of the record. Mull v. McKnight, 67 Ind. 535.

5. It will be presumed, the contrary not appearing, that instructions given were applicable to the evidence.- Higbee v. Moore, 66 Ind. 263; Wiles v. Lambert, id. 494. 6. It was held that neither the evidence nor instructions given will be considered on appeal, unless the record contains all the evidence.- Abrams v. Smith, 8 Blackf. 95; Murray v. Fry, 6 Ind. 371; Ruffing v. Tilton, 12 _id. 259; Newton v. Newton, id. 527: State v. Frazer, 28 id. 196; Columbus, etc., R. R. Co. v. Powell, 40 id. 37; Mille v. Voss, id. 307; Keating v. State, 44 id. 449; Aurora, etc., Tp. Co. v. Johnson, 46 id. 315; May v. Pavey, 63 id. 4.

669. Reversal-Effect upon title. 607. The reversal of any judg ment by virtue of which any real estate has been sold or transferred, or the title thereto affirmed, shall not avoid the sale, transfer, or title, if the person to be affected thereby shall be, or claim under, a purchaser in good faith, and not a party to the record or attorney of any party. (533-)

1. The reversal of a judgment does not avoid a sale under it to a purchaser in good faith, or to the grantee of such purchaser.--Smith v. Anthony, 16 Ind. 267.

2. The effect of a judgment in evidence is as conclusive as if pleaded in estoppel against the parties to it.-Gavin v. Graydon, 41 Ind. 559; McCaffrey v. Corrigan, 49 id: 175.

3. A receipt entered by a judgment-plaintiff or his assignee is not conclusive of payment, even as to a subsequent purchaser in good faith without notice.- Lapping v. Duffy, 65 Ind. 229.

670. Restitution impossible-Remedy of defendant. 608. In every case of a sale, transfer, or confirmation of real estate upon execution or by judgment, where the defendant can not have restitution of his estate, he shall be entitled to recover of the judgment-plaintiff the full value of the estate with interest, when the judgment-plaintiff has pur

chased the estate, or had the same confirmed or transferred to him; and when the land has been sold by the Sheriff to any other person, he may recover the proceeds of the sale, with interest, deducting the amount applied to the costs of the judgment-defendant. (534)

671. Restitution. 609. In every other case of a reversal of any judg ment, by virtue of which any real estate has been sold or transferred, or the title confirmed, the judgment-defendant shall have restitution thereof as follows: (535)

672. Notice of motion for restitution. 610. He may notify the purchaser or his tenant, or other person in possession, that at the next term he will move the Court which rendered the judgment to restore to him the possession of the premises. (536.) 673. Hearing and judgment. 611. Upon proof that the notice has been served ten days, the Court may proceed to hear and determine the issues made by the parties, and render judgment accordingly, or the judg ment-defendant may recover his real estate by the ordinary action. (537.)

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small]
[blocks in formation]

674. Writs of. 479. Writs of execution, as now used for the enforcement of judgments, are modified in conformity to this Act; and any party in whose favor judgment has been heretofore or shall hereafter be rendered may, at any time within ten years after the entry of judgment, proceed to enforce the same as provided in this Act. (405)

1. An execution upon a void judgment is a nullity; otherwise, upon a voidable judgment.- Dawson v. Wells, 3 Ind. 398; Doe v. Harter, 2 id. 252.

2. The motion for leave to issue execution need not set out a copy of the iudgment. -Verden v. Coleman, 23 Ind. 49.

3. The lien of an execution is not divested by an assignment for the benefit of creditors.- Marsh v. Vawter, 71 Ind. 22.

4. An ex-Sheriff may, under sanction of the Court, amend his return of an execution.-Dwiggins v. Cook, 71 Ind. 579.

5. Irregularity in the issuance of an execution can only be objected to by the judg. ment-defendant, and by him only in a direct proceeding.-Jones v. Carnahan, 63 Ind. 229.

6. Execution may issue as soon as the entry of judgment is signed.-Willson v. Binford, 54 Ind. 569.

675. After ten years-Upon leave. 480. After the lapse of ten years from the entry of judgment or issuing of an execution, an execution can be issued only on leave of Court, upon motion, after ten days' personal notice to the adverse party, unless he be absent or non-resident or can not be found, when service of notice may be made by publication, as in an original action, or in such manner as the Court shall direct. Such leave shall not be given unless it be established by the oath of the party, or other satisfactory proof, that the judgment or some part thereof remains unsatisfied and due. (406.)

1. Execution may issue upon an existing judgment against a defendant constructively summoned.-Gibson v. Green, 22 Ind. 422.

2. On the hearing of the motion, the plaintiff should be examined orally as a witness: his ex parte affidavit is not competent.- Simpson v. Wilson, 16 Ind. 428.

3. A party or privy to proceedings upon an execution can not impeach a return thereto, except by direct proceedings against the officer making it.— Splahn v. Gillespie, 48 Ind. 397; Fry v. Gallaspie, 61 id. 478.

4. Personal property levied upon, and left with the defendant with permission to sell, is not bound by such colorable levy.- Wunderlich v. Roberts, 67 Ind. 421.

676. Three kinds of. 482. There shall be three kinds of executions— one against the property of the judgment-debtor, one against his person, and one for the delivery of the possession of real or personal property, or such delivery with damages for withholding the same; and executions may be issued to the Sheriffs of different counties at the same time; but the plaintiff shall pay the costs upon all executions not necessary to the collection of his judgment. (408.)

677. Execution-docket - Contents, 591. The Clerk of every Court of record shall keep an execution-docket, in which he shall enter all executions as they are issued by him, specifying, in proper columns, the names of the parties, the amount of the judgment, and the interest due at the issuing of the execution, and the costs, and prepare an additional column, in which he shall enter at length the return of the Sheriff; and such docket entries shall be taken and deemed to be a record. (517.)

1. Hereunder, the Sheriff's return is made a record, and the record imports "absolute verity," and can not be affected by parol evidence.— Stockton v. Stockton, 59 Ind. 577; Fry v. Gallaspie, 61 id. 478.

678. Precipe for execution and fee-bill. 501. No execution shall, in any case, be issued in any cause, except on the written precipe of a party to such suit, his representatives or assigns, or of his attorney of record; and no fee-bill shall be issued, unless the same shall be ordered by the person to whom such fees, or a part thereof, are due but the Clerk shall receive nothing for any fee-bill issued for his own fees..

679. Judgments, how enforced. 481. When a judgment requires the payment of money or delivery of real or personal property, the same may be enforced in those respects by execution, as provided in this Act. Where it requires the performance of any other Act, a certified copy of the judgment may be served upon the party against whom it is given, or upon the person or officer who is required thereby, or by law, to obey the same, and his obedience thereto enforced; if he refuse, he may be punished by the Court as for contempt. (407.),

680. No execution against body or property, when. 483. No execution against the body shall be issued while an execution against the property remains unreturned, nor shall an execution against the property be issued while there is an execution against the body unreturned. (409.) 681. To whom issued. 484. When the execution is against the property or body of the judgment-debtor, it may be issued to the Sheriff of any county in the State. Where it requires the delivery of real or personal property, it must be issued to the Sheriff of the county where the property, or some part thereof, is situated. (410.)

682. Requisites of. 485. The execution must issue in the name of the State, and be directed to the Sheriff of the county, sealed with the seal, and attested by the Clerk of the Court. It must intelligibly refer to -the judgment, stating the Court where and the time when rendered, the names of the parties, the amount, if it be for money, and the amount

actually due thereon; and shall require the Sheriff, substantially as follows:

First. If it be against the property of the judgment-debtor, it shall require the Sheriff to satisfy the judgment out of the property of the debtor subject to execution.

Second. If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants of real property, or trustees, it shall require the Sheriff to satisfy the judgment out of such property.

Third. If it be against the body of the judgment-debtor, it shall require the Sheriff to arrest such debtor and commit him to the jail of the county until he shall pay the judgment, or be discharged according to law.

Fourth. If it be for the delivery of the possession of real or personal property, it shall require the Sheriff to deliver the possession of the same, particularly describing it, to the party entitled thereto; and may at the same time require the Sheriff to satisfy any costs, damages, or rents and profits recovered by the same judgment out of the property of the party against whom it was rendered subject to execution, and the value of the property for which the judgment was recovered to be specified therein, if a delivery thereof can not be had; and shall, in that respect, be deemed an execution against property. (411)

1. A Sheriff is merely a ministerial officer, and warrants nothing in his sales. - State v. Prime, 54 Ind. 450.

2. The property of an estate is not subject to the levy of an execution upon a judg. ment against the administrator, unless it be ordered in the judgment to be sold specifically in satisfaction thereof. Johnson v. Meier, 62 Ind. 98.

3. Execution should issue against all the judgment-defendants.- Dandistel v. Kronenberger, 39 Ind. 405.

4. All the personal property of each of several joint judgment-debtors need not be exhausted before resorting to realty. The lands of any one may be levied upon, if he have no personalty.― Drake v. Murphy, 42 Ind. 82.

[ocr errors]

683. Time of return. 486. The execution shall be returnable within one hundred and eighty days from its date. (412.)

684. When may issue on Sunday. 490. An execution may be issued and executed on Sunday, whenever an affidavit shall be filed by the plaintiff, or some person in his behalf, stating that he will lose his judgment, as he has reason to fear and believe, unless process issue on that day. (417.)

685. Indorsement of Clerk on such writ. 491. The Clerk shall indorse on such execution that the defendants are not privileged from service on Sunday. (418.)

686. Lien on chattels - When first levy preferred. 487. When an execution against the property of any person is delivered to an officer to be executed, the goods and chattels of such person within the jurisdiction of the officer shall be bound from the time of the delivery; but if there be several executions, whether issued out of a Court of record or by a Justice of the Peace, against the same defendant in the hands of differ ent officers, that execution, without regard to the time of its delivery, under which the first levy is made shall have the preference, and all liens created by the prior delivery of any other execution shall be divested in favor of the execution first levied. (413.)

1. An execution is a lien against the defendant's personal property from the time

« AnteriorContinuar »