Ray v. Ellis

Russell, C. J.

The original proceeding was by distress warrant. The judgment upon the issue raised by the counter-affidavit, in ordinary course, required an order that the levy proceed; and, in the absence of a judgment sustaining an affidavit of illegality upon the ground that the levy was excessive, a judgment to that effect should have been rendered. This would have resulted in the sale of all the property levied upon: For some reason not disclosed by the record, the city court, in rendering judgment against Ray and against the property levied upon, granted him an order “for the remainder of” the property, “or the proceeds thereof, in the hands of the sheriff.” The judgment, so far as it provided that the remainder of the personal property levied on be delivered to the defendant in the distress warrant, was unauthorized by law and ineffectual, and could properly have been disregarded by the trial judge in considering the petition for the rule, which did not ask for the remainder of the crop, but demanded “the proceeds arising from the sale of his said crops, or the balance of the same.” Under the ordinary rules of construction, the balance mentioned could only refer to the balance of the proceeds arising from the sale of his crops, and not to the balance of the crops themselves, if any was claimed to exist. This view is strengthened when we consider that under the general rule pleadings are to be most strictly construed against the pleader. In any event, the order with relation to the return of a portion of the crop (when, under the law, the judgment required the levying officer to sell all the property levied upon) was extraordinary,, and it was for the court to decide whether a failure to obey this part of the judgment was a contempt. The headnote directed to this point does not require elaboration. Judgment affirmed.