Sewell v. Harrington , 11 Vt. 141 ( 1839 )

The opinion of the court was delivered by

Williams, Ch. J.

The case, as drawn up, presents but two questions. 1. Whether the plaintiff had the wagon in his possession by virtue of the execution issued on the judgment in favor of Miller against Clark; and, 2. whether the execution was so far void that the defendant was justified in taking the property in question from the plaintiffs possession by virtue of the execution in favor of Leffingwell against Clark. On the first question, it may be remarked, that as the trial of the issue was by the court, it is to be inferred that the fact of possession was found by them, unless it should appear that the evidence was insufficient, in law, to establish the fact. The party excepting must always have enough stated to show that i error has intervened. In the case before us, in stating the evidence, it is not very explicitly set forth that the plaintiff took the wagon by virtue of Miller’s execution. It might, however, be inferred that such was the case. It appears that the plaintiff was a deputy sheriff; that he had the execution in his possession to serve and return, and further, that the county court, who tried the issue, found that he had the wagon by virtue of an execution. We can see nothing, therefore, to induce us to disturb the judgment of the county court on this point, as we cannot say the evidence was legally insufficient to prove that he took and held the wagon, as deputy sheriff, by virtue of the execution in favor of Miller. Nor was it any objection to the right of the plaintiff, in this case, that the execution was not returned. The writ of execution was a final process, and, moreover, before he could legally complete his service thereon, it was'taken from his possession by the defendant.

On the other point in the case, it may be remarked, that the execution issued upon a judgment of a court of competent jurisdiction, having jurisdiction of the parties to that judgment, and also of the controversy between them. It cannot, therefore, be considered as void, but voidable only. It was optional with Clark, the debtor, whether the judgment should remain good or be set aside, and if he¡ had not thought proper to bring his writ of review, the judgment would have remained in force, notwithstanding the writ was drawn up by the plaintiff, who was a deputy sheriff. It is true, the statute declares that no sheriff, deputy sheriff, &c., be allowed to make any process, or fill up any writ, declaration, or complaint, and further declares, that, all such acts, done by either of them, shall be void ; and that such process, writ, declaration, &c., shall be dismissed, the plaintiff become nonsuit, and the defendant recover his costs ; but the terms made use of show that it is voidable, and remains good until avoided by plea or motion, and not so absolutely void from the beginning as that no one is bound by it. The The case of Prigg v. Adams, et al., 2 Salk. R. 674, is very decisive of the case before us, on this point, where it was held, that, although an act of parliament declared that a judgment entered for under forty shillings, in certain cases there mentioned, should be void; yet the judgment was not so far void that the party could take advantage of it in a collateral action, but it was voidable only by plea or upon error. The plaintiff, therefore, at the time the property was taken by the defendant, had the custody of it, by virtue of an execution apparently good, until it was set aside on the writ of review brought by Clark against Miller. In consequence of the judgment Miller against Clark being set aside, the plaintiff was not entitled to recover of the defendant, who took the property by virtue of the execution Leffingwell against Clark, the whole value of the property, but he was entitled to the nominal damages, which were awarded to him by the county court. The judgment of the county court is, therefore, affirmed.