Dickerson v. Toulmin , 2 Stew. & P. 52 ( 1832 )

Saffold, J.

From the scanty record in this case, it appears that the plaintiffs in error, were each plaintiffs in distinct executions, which had issued from from the Circuit Court of Mobile county, against Willoughby Barton; that on the 10th day of December, 1829, the Circuit Court of said county being then in session, George F. Salle, esq., as attorney for the plaintiffs, addressed to the court a motion as follows :

After stating the two cases, as between the original parties to the executions, the record says, ‘‘in these cases, the representatives of the plaintiffs, by their counsel, move the court, that the sheriff, T. D. Toulmin, esq., be ordered to pay over any monies which he may have collected upon an execution issued in favor of Samuel C. McDowall, against Wil-loughby Barton — the executions and judgments of said Dickerson & Wayne being prior in point of time;” which motion the court overruled.

All the facts appearing in the case are stated in a bill of exceptions, and are these : that the respective plaintiffs, Dickerson & Wayne, obtained judgments against Barton, at a special term, in February, 1828, on the 30th da,y of the month; that Mc-Dowall obtained his judgment against the same, at the regular March term following; that Dickerson & Wayne respectively issued executions on their judgments, returnable to the succeedingregular term ; and alias executions, dated the 30th of April, 1829. •It also appeared, that McDowall’s execution issued on the 6th of April, 1829.

The cause of error assigned is, that the court refused the motion.

From the state of the record, preliminary points present themselves for the consideral ion of the court; which, if determined against the plaintiffs in error, will preclude any inquiry respecting the priority of lien; ortho power of the court to direct the application of any money supposed to have been made by the sheriff.

1. The motion purports to have been made at the instance, and for the benefit, of the representatives of the plaintiffs, Dickerson & Wavue. This implies that they are dead, and that the motion was made at the instance of the executors, or administrators, without shewing which; who they are, or what, olher representatives have the parties in interest. To au-thorise the proceeding below, or the prosecution of a writ of error, it is necessary the parties should be known.

2nd. The plaintiffs, Dickerson & Wayne, appear to have been several plaintiffs in different executions; the motion below recognized ihem as such; consequently, they had no authority to unite in the prosecution of a writ oí error, as joint plaintiffs.

3d. It is not sufficiently shewn by the bill of exceptions, or any other part of the record, that any money had been made by the sheriff on McDowall’s execution; or, that any levy had been made on Barton’s property, either real or personal. The motion, in its true form, as at first made and entered on the record, is stated to have been, “ that the sheriff be ordered to pay over any monies which he may have collected,” on the execution. And in the conclusion of the bill of exceptions, the motion is recited in a varied form, so as to contain an assumption that a levy on real estate, and money had been made, thus : “a motion is now made to have the money made on McDowalj’s execution, which was levied on real estate, applied to the benefit of Wayne & Dickerson’s executions.” But it is in no manner shewn, that the slightest proof was made or offered by the sheriffs return or otherwise, of the truth of these facts assumed by the motion ; nor that any money that might have been made, not having been paid over to the plaintiff, still remained in the sheriff’s hands.

We have, therefore, no hesitation in deciding that this courtis incompetent to assume or infer the existence of the facts. Therefore, without considering the merits of the question intended to be presented by the motion, and to which the argument was mainly directed ; and without determining whether, if the proceedings had been regular, this was a motion, which in its nature would have been subject to revision on error, or which can create a bar to a subsequent proceeding in the same or a different form to effect the same object; we are of opinion, there is no error shewn in the record, and the judgment must be affirmed.

Lipscomb, C. J. not sitting.