Jacobs v. . Burgwyn ( 1869 )

RodmaN, J.

This case came up by appeal from the decision of the Judge on a motion to set aside a judgment and execution as irregular. At Fall Term 1863, of the Superior Court of Law for Northampton county, the action stood for trial, and an entry was made, “Judgment.” The case and this entry were brought forward to Fall Term 1864. No Courts were held in that county during 1865. On the 8th March 1866, the plaintiff filed the notes declared on, with the. clerk, who thereupon extended his memorandum of “ Judgment ” into a_ formal judgment, as of Fall Term 1864. We think this was not irregular. The entry of the clerk was a memorandum, which might, as between the plaintiff and the defendant, be put in the shape of a formal judgment at any time. Davis v. Shaver, Phil. 18. The original entry ¿was with the sanctiou <of the Court, and having been brought forward to Fall Term 1864, must be assumed to have had the sanction of the Court at that term. But when the execution issued on the 8th March 1866, it issued on a dormant judgment, and was therefore irregular: Rev. Code, ch. 31, sec. 109, Blanchenay v. Burt, 4. A. & E. N. S., 707, (45 E. C. L. R.) Simpson v. Sutton, Phil. 112. A defendant may set aside an execution irregularly issued. Shelton v. Fels, Pbil. 178.

Or if tbe defendant has become a bankrupt, bis assignee may. Webber v. Hutchins, 8 M. & W., 319.

This boweyer is subject to tbe qualification, that tbe Court will not permit it to be set aside, to tbe prejudice of third persons, wbo baye acquired rights under it. Murphrey v. Wood, 2 Jon. 63.

It remains to be seen whether that principle can influence tbe present case. Tbe fi. fa. which issued on tbe 8th March 1866, tested of Eall Term 1864, was levied by tbe Sheriff on certain property. . A ven. ex. issued from Spring Term 1866, and before its return day and while it wasjmthe bands of tbe Sheriff, be sold tbe property, not under that execution but under certain fi.fa’s from the County Court of Northampton, against tbe defendant EL K. Burgwyn. It does not appear but that these fi. fa’s were regular. If so tbe purchaser certainly got a good title to tbe defendant’s estate, and it is not necessary to inquire what might be tbe result, if it were necessary for him to rely on the present execution. Ele has not intervened as be might have done, and does not appear to have any concern in the present questions. This is substantially a contest between creditors as to thejapplication of tbe fund. We' do not undertake to say bow it might be if tbe plaintiff’s execution bad been regularly issued, and tbe sheriff, baying that in bis bands and being restrained! by military authority from selling under that, bad sold under junior executions. We will decide that case when it arises. In this case tbe plaintiff’s execution was irregular, and under tbe authorities cited, we are bound to set it aside. “ Vigilantibus non dormientibus jura subveniunt.” Tbe plaintiff was guilty of manifest laches. There is error in tbe Court below. Tbe Judge set aside both tbe judgment and execution, whereas be . should have set aside tbe execution only. As far as it sets aside the judgment, bis judgment is reversed, as far as it sets aside the execution it is affirmed. The judgment being partly reversed and partly affirmed — neither party will recover costs, in this Court. Let this opinion be certified.

Per Curiam. Judgment accordingly.