Merrifield v. Western Cottage Piano & Organ Co. , 1908 Ill. App. LEXIS 472 ( 1908 )

Mr. Presiding Justice Thompson

delivered the opinion of the court.

There was no order restraining execution as to any of the defendants except Burrows. The execution was restrained on his motion, and the order did not interfere with proceeding under the execution against the other defendants. An execution must follow the judgment and appear to be against all the defendants, notwithstanding for some cause no levy can be made on the property of some. Freeman on Executions, sec. 42. Where an execution is stayed as to one defendant it may be enforced against the others. Sheetz v. Winkoop, 74 Penn. St. 198.

Upon the question presented concerning the issuing and amendment of the execution, the following considerations appear to us to control. Burrows could only appear and defend for himself. The other defendants did not claim that this debt had been paid, or that they did not owe it. Although Burrows, who was apparently a mere guarantor on the note, obtained leave .to plead, he had no right to prevent plaintiff from collecting the judgment against the other defendants. It was proper to overrule the motion of Burrows to recall the execution as against the other defendants. An execution ought to conform to the judgment, and the execution as originally issued omitted the name of Thomas W. Burrows, a defendant against whom the judgment still stood. There was therefore an informality in the execution. An execution •can be amended, provided there is that in the judgment by which to amend. Revised Statutes, Chap. 7, “Amendments and Jeofails”; Bybee v. Ashby, 2 Gilm. 151,166, where common law authorities are cited; Lewis v. Bindley, 28 Ill. 147; Durham v. Heaton, 28 Ill. 264; McCormick v. Wheeler, 36 Ill. 114; Bissell v. Kip, 5 Johns. 89, where it was held that the execution could be amended where there was something to amend by, namely, the judgment. We are of opinion that in view of the fact that there were two other defendants who were not claiming a defense nor resisting the collection of the judgment, the original order should have permitted an execution to issue against all the defendants upon the face of the judgment, and should have only stayed the collection of the execution as against Thomas W. Burrows. The order of the January term, 1908, permitting the amendment by inserting the name of Burrows in the execution was practically a modification of the former order, and it is therefore affirmed. The court should, however, upon again repossessing itself of the case, enter an order that the execution he not collected as against Thomas W. Burrows till the further order of the court.

The order in No. 4961, allowing the amendment of the execution, is therefore affirmed.

Affirmed.