Massey v. Gardenhire , 7 Ark. 638 ( 1852 )

Mr. Justice Scott

delivered the opinion of the Court.

The execution in question was prima facie good. It was not necessary that there should have been a recital in it that an execution had been previously issued by the Justice of the Peace and returned “no property found,” although this was an indispensable pre-requisite as a step in the proceedings. Nevertheless, as the petitioner sought its quashal upon the ground that it “was issued without any authority of law, and without any legal or valid foundation,” and the opposite party appeared and contested the motion and the court granted it, we must presume that the Court decided correctly unless the contray appears upon the record.

And in looking through the transcript we find that the justice’s judgment was for a sum over ten dollars; that the transcript was filed with the clerk, and spread upon the records of the Circuit Court, but it does not appear either by bill of exception or otherwise that in fact an execution had been previously issued by the Justice of the Peace and returned nulla bona; consequently, in support of the judgment below, we must presume that, upon the hearing, the Court looked to its own records, and, finding this hiatus in the proceedings, quashed the execution for that cause.

The judgment must be affirmed.