Oberwarth v. McLean ( 1877 )

March, 1877.

By 3 L. 1873, p. 1493, c. 639, § 8, one obtaining a judgment in the marine court can enforce it either by execution to a marshal issuing out of that court, or, if he has filed a transcript of the judgment with the county clerk, by execution to the sheriff.

In' such a case the judgment creditor, by filing a transcript in the county clerk’s office, makes his election to follow the latter course, and cannot thereafter issue execution out of the marine court to & marshal. Before filing the transcript he may first issue execution out of the marine court, and after it has been returned, wholly or partly unsatisfied, or after sale thereunder, he may file his transcript and issue execution to the sheriff.

The filing of the transcript supersedes, and is an abandonment of, his right to the execution in the marine court, and whatever there remained to be done thereunder; and the marshal can do nothing thereafter.

A marshal proceeding in ignorance of the filing of the transcript may be protected as to Ms subsequent acts, but those in whose behalf it was filed, or other persons knowing the facts, are liable for directing or authorizing him to proceed.

Held, as above. Opinion by J. F. Daly, J.