Davis v. Baldwin ( 1837 )

Mr. Justice Smith

delivered the opinion of the court.

At the November term of the circuit court of Warren county in 1832, the appellant entered her motion to quash an execution which had been issued in favor of the appellees, Joshua Baldwin and John Lane, returnable to that term of said court against the effects of Samuel A. Davis. This execution had been levied upon the goods of Davis, who had previously died, and was superseded before sale under it, upon the petition of the appellant, Lucinda Davis, who is the administratrix of Davis.

The ground relied on in support of the motion to quash is, that the defendant in the execution, Samuel A. Davis, died before the execution issued. The motion was overruled, and the plaintiff in’ the proceeding below excepted to the opinion of the court. But the bill of exceptions does not present the questions which were pressed upon the consideration of the court in the argument at bar. There is no statement in the bill of exceptions at what time the execution issued; hence this court cannot ascertain whether the court below regarded the fact that the execution bore test after the death of Davis as unimportant, or whether its decision was based upon the ground that the reason given in support of the motion was not true in point of fact. It is obvious that the counsel intended to embody the execution in his bill of exceptions and thus make it a part of the record. The execution is referred to in the exceptions with direction to insert it at that place; but not having been done in making np the record, the state of facts upon which the court decided does not appear, and we are consequently unable to see that the decision was erroneous, and must therefore presume that it is correct.

Judgment affirmed.