Creighton v. Denby ( 1824 )

JUDGE Minor

delivered the opinion of the Court.

It is assigned as Error that the Circuit Court overruled motion to quash the execution.

For the defendant it has been contended that the writ Rrror i‘s barred by the Statute of limitations, and that it will not lie on the decision of the Circuit Court over-rulinS tíie motioP to <3uash- The motion to quash appears to have been decided at ^November Term, 1821, and the writ ®rror to have issued on the 19th day of the same month. This decision was a final judgment on the matter therein litigated, and the party dissatisfied had a right to have it reviewed in this Court. 2 Wash. 135. 2 H. and Mun. 181. 2 Haywood, 136. The State vs. Phleming, ante, 42. The execution which appears to have been the subject of the motion, issued on the 17th day of July, 1821, in favour of the defendant against the plaintiff in Error fox $360rW debt, and $48-¡W costs, and purports to have been founded on a judgment of the Circuit Court of Baldwin County. Another execution between the same parties appears in the transcript of the Record, dated 10th day of April, 1814, purporting to be founded on a judgment of the Superior Court of that County for $1155/¶% debt, and .$22 T%V damages. Neither of the executions sets out the date of the judgment. No judgment in a case between these parties appears in the Record. But it appears that on the minutes of the Circuit Court of Baldwin County, or of the Court whose Records were transferred to that Court, an entry was made in the year 1814, entitled in the case between James Denby & Co. vs. Edward Creighton, as follows : “ Motion by Attorney Carson that execution issue agreeable to the sum sworn to; motion granted,” No sunt is expressed m this entry, and the Record does not shew the sum sworn to. If it could be considered as a judgment, it is not a judgment in a case between the parties to the execution which was the subject of the motion. This execution did not issue until about seven years after the of the entry. No execution appears to have issued in the mean time on the supposed judgment. The execution for 41155jW; &c. on a judgment of the Superior Court of Baldwin County does not appear to have any connexion with this. The judgment of the Circuit Court must be reversed, and the execution last set out in the Record, and dated 17th of July, 1821, quashed.