Prescott v. Prescott , 62 Me. 428 ( 1873 )

Appleton, C. J.

It is well settled that execution may issue in favor of the wife against the husband for alimony decreed the wife. So, an action of debt will lie on such decree. Howard v. Howard, 15 Mass., 196. In French v. French, 4 Mass., 587, it was held, where alimony was decreed to be paid quarterly, that the court would not issue execution without first making a rule on the husband to show cause. But in that case, the alimony had been decreed in one county and the application for an execution was in another. In the case at bar, the libel was pending and the monthly instalments remained unpaid, for which, execution was to issue. There was no occasion to issue a rule on the libellee, for he was in court by his counsel, and it being shown satisfactorily to the court, that monthly instalments due remained unpaid, the libellant was entitled to an execution for the amount, and whether the instalments were included with the sum allowed in lieu of alimony, or several executions were issued for each instalment, was a matter which could not injuriously affect the libellee.

While the joinder of the instalments with the sum allowed for alimony cannot prejudice the libellee, the issuing of execution for a greater sum than was ordered by the decree of the court must be to his injury.

To sustain a levy there must bean execution. No execution can properly issue unless it corresponds witli. an antecedent j udgment, which is thereby to be enforced. An execution which is not preceded by a judgment, is void. In Clark v. Fowler, 5 Allen, 45, it was held that a valid title to land was not acquired by the levy thereon of an execution, issued on a judgment in a suit in which no legal service was made on the defendant, though, after the rendition of judgment, he verbally waived the want of legal service upon him. In the present case the judgment and the execution are both before us, and there is an important and material variance between them. The judgment is for a sum payable at a future day without interest, while by the execution the officer is commanded to collect the same sum with interest for the time during which, by the judgment of the court, there was to be no interest. The mandate of the execution exceeds in an important particular the judgment of the court, varying from it in being more onerous on the libellee.

The error in this case is not that of the court in making an erroneous computation of the amount due, which, perhaps, might be rectified. Avery v. Bowman, 40 N. H., 453. It is in commanding the collection of what by the judgment of the court waB not to be collected. No motion was made for correction or amendment of the execution. The levy was consequently for too large a sum — to wit: the sum of $2.40. In Glidden v. Chase, 35 Maine 90, a levy of land on execution greater in value by fourteen cents, according to the appraisement, than the officer was authorized by his precept to take was held invalid.

The case does not fall within the provision of E. S., c. 76, § 20, by which a remedy is given against the officer or creditor, when, through the mistake of the officer, the levy is made for too much, for here there was no error on the part of the officer. He only followed the commands of his precept.

In Wilson v. Flemming, 16 Vermont, 649, an execution, misdescribing the judgment as to sums, was held void, and was set aside on audita querela. “When the judgment is thus misdescribed,” observes Eedfield, J, “it is the same as if there was no judgment upon which the subsequent proceedings rested; for, in fact, there is no such judgment as is recited.” The record of the judgment and the execution, both of which were introduced by the demandant, show precisely the same variation as in Wilson v. Flemming, and the facts fully appearing in the evidence, no reason is perceived why the same result should not follow. So, an execution made returnable in sixty days, when it should be made returnaable in one hundred and twenty, is void, and will afford no justification to an officer seizing and selling property. Bond v. Wilder, 16 Vermont, 393; Fifield v. Richardson, 34 Vermont, 410.

The case of Smith v. Keen, 26 Maine, 411, is not applicable. There the execution was in conformity with the judgment, but the judgment exceeded the ad damnum, and it was held that the judgment was valid until reversed. Here no exception is taken to the validity of the judgment. The objection is that no execution has been issued in conformity therewith.

There are other exceptions taken to the levy but it is unnecessary to consider them, as the objection discussed we regard as fatal.

Judgment for the tenant.

Gutting, Dickerson, Danforth, Virgin and Peters, JJ., concurred.