Ramsey v. Landry ( 1917 )

Bringing forward the action, Landry v. Donnelly, and vacating the erroneous judgment rendered therein was proper procedure for the correction of the error. Clough v. Moore, 63 N.H. 111, 113; Moore v. Carpenter,63 N.H. 65. To this procedure no exception is taken. The only exceptions relate to the orders made upon final hearing. The order of judgment for Donnelly must have been based upon a finding that at the time of the replevin his title was superior to Landry's. It is not claimed such finding was unsupported by evidence. Landry having failed to establish his title to the property cannot object to a judgment against him for its value, $600. Claggett v. Richards, 45 N.H. 360, 364; Messer v. Bailey, 31 N.H. 9, 16; Kendall v. Fitts, 22 N.H. 1, 10; Bell v. Bartlett, 7 N.H. 178; P. S., c. 241, s. 8.

The judgment first rendered against Landry in the replevin suit having been vacated and the execution canceled, Landry would appear to be entitled to a writ of restitution for the amount paid by him in excess of the amount finally determined to be due from him. However that may be, Landry having already paid more than the amount of the correct judgment, $600 and costs, the final execution should be endorsed, satisfied in full, instead of in part as ordered. As Landry had complied with the condition of the replevin bond before suit was commenced, the defendants are entitled to judgment in that suit. The exceptions are sustained.

The issue in these suits is the liability of Landry which is determined and found discharged. The money, presumably in Donnelly's hands, is to be levied upon in the order of the attachments. If in fact, as may be inferred from the case, through mistake the money paid was turned over to Hadlock, whether Pepin is estopped to insist upon the return to Donnelly of sufficient to satisfy her execution by levy thereon, or to hold him responsible therefor, if a return is in fact unattainable, are questions in which Hadlock may have an interest but in which Landry has none, and which are not presented by the record.

Case discharged.

All concurred.