Sparre v. Abbott ( 1891 )

Waterman, J.

Four judgments having been entered against one Halvor S. Paulsen, the sheriff took the four executions issued thereon, went to Paulsen, told him he ought to pay the same, and upon his reply that he could not, advised him to make an assignment, which he did.

Upon application of the assignee the lien of two of the judgments was set aside, it being recited in the order that they were entered collusively and in contemplation of and with knowledge that the assignment was about to be made. From this Charles Sparre alone appeals.

It is sufficient to say that in the record brought to this court there is no evidence whatever to sustain such finding. The only contention of counsel for appellee is that the sheriff was directed to hold and not levy the executions issued on these judgments and that therefore they did not become liens.

Whatever may have been said at the time the executions were delivered to the sheriff, it is unmistakable that before any assignment was made the sheriff was directed to levy on all the writs; moreover the petition to set aside the lien of the judgments proceeds entirely upon the theory that they were in fraud of the insolvent law, and there is no allegation that the sheriff had them with directions not to levy.

The order of the County Court declaring the said judgment of Charles Sparre void as a preference is reversed and the cause remanded with directions that the lien of the said judgment and execution of the said Charles Sparre be allowed to stand.

Reversed cmd remanded with directions.