Thompson v. Atherton , 6 Ohio 30 ( 1833 )

Collett, C. J.,

delivered the opinion of the court:

In the case of the Urbana Bank v. Baldwin, 3 Ohio, 65, this court decided, that where a suit was pending at the commencement of a term, the judgment rendered on any subsequent day of the term related back to, and attached its lien, as of the first day of the term. In that case, Baldwin was a bona fide purchaser, after 31] the commencement of the term, but before +Mie day the judgment was confessed. The lien of the judgment was held to attach against him.

Subsequent to this adjudication, the legislature enacted the law under which this case is presented. Section 2 provides, “ that the lands and tenements of the debtor shall be bound for the satisfaction of any judgment against such debtor, from the first day of the term at which such judgment shall be rendered, in all.cases where such lands lie within the county where such judgment was entered.” 29 Ohio L. 101. Section 23 of the same statute provides, “that no judgment heretofore rendered, or that may hereafter be rendered, on which execution shall not have been taken out and, levied within one year next after the rendition of such judgment, shall operate as a lien on the estate of any debtor to the prejudice of any other bona fide judgment creditor.”

Both these provisions are but transcripts ot the statute of 1824, the construction of which has been settled by a series of decisions in this court, in the cases of Urbana Bank v. Baldwin, McCormick v. Evans, Shuey v. Ferguson, and Earnfit v. Winans. By these cases it is decided that 'the execution must be both sued out and levied within the year, or the lien is lost if brought into collision with a subsequent judgment, which is so sued out and levied. Thompson’s judgment is in this predicament. The levy is overreached by the relation back of Atherton’s judgment to the first day of the term wherein it was rendered. The construction of the statute of 1824 was settled upon careful deliberation. By reenacting its provisions, the legislature have sanctioned that construction, and it must be adhered to. The order is affirmed.