Eakle v. Smith

Bowie, C. J.,

delivered the opinion of this Court.

A fieri facias, issued out of the Circuit Court of Washington county, as a Court of Equity, on the 29th of January, 1861, at the suit of the appellee, against Jacob and Amos Eakle, was returned on the 13th of March, 1863, on which day the appellants appeared and moved the Court to set aside the sale and quash the execution. At the same term, the appellee moved for leave to amend the writ. Orders to show cause were passed, and after testimony taken the Court below ordered the writ of fieri facias to be amended, and overruled the motions to set aside the sale and quash the writ, from which several orders this appeal is taken.

Many points of much interest in practice have been raised by the briefs, but one or two only are necessary to be considered, for the decision of the cause. -

Whether judicial writs are amendable or not, is not one of these. The statute of Jeofails generally applies to proceedings at common law, and such as occur prior to the verdict or judgment. If the further execution of the writ was suspended by the operation of the appeal bond, it is immaterial whether the writ was regular or irregular.

The execution having been issued on the 29th of January, .1861, and the judgment or decree rendered on the first Monday of July, 1860, all proceedings under the latter must he regulated by the Code. The provisions of the Acts of 1826, ch. 200, and of the Act of 1840, ch. 232, are virtually condensed in Art. 5, sections 31 and 33, title appeals. There is no ambiguity in the meaning of those clauses, when read with due regard to their several subjects. The first refers to judgments, on which no execution has been issued ; in which case no stay or suspension of the right of execution occurs, unless cotemporaneously with the appeal, or “ immediately,” to use the language of the Code, " upon praying an appeal from any such judgment or decree, or suing out a writ of error” bond as therein prescribed, he entered into, and ax>proved.

The next class is judgments on which any execution has been issued, " whether the same has been in part executed or not.” In this section, the 33rd, " the filing of an appeal bond approved as aforesaid, shall stay any execution which has been issued on any such judgment or decree.” Both presuppose the appeal to have been taken in due time. The appeal per se, operates no supersedeas, whether execution he issued or not. The defendant, who desires to protect himself from the effects of an execution, if he would avoid all risk of delay, must filo the bond immediately, for until then ho is exposed to execution. On the other hand, if he is willing to incur that risk, or unable to give bond earlier, ho may defer it till the last moment before execution is consummated, provided he has appealed in time.

The nonpayment of the costs, does not necessarily destroy the effect of the bond as a stay of execution. It is clear from the context, that provision was mandatory to the Sheriff, requiring him to stay all further proceedings, and deliver up the property upon receix)t of the costs. It was for his protection, not the plaintiff’s. He might refuse to suspend and deliver the property, until the costs were paid, or he might waive his claim. Other parties who were fully indemnified by the bond, could not complain. As a general rule, the defendant and not the plaintiff, is liable for poundage fees. To enable the defendant to pay the costs, they must be ascertained by the Sheriff and demanded. In this case, according to the testimony, there was no demand of the costs, “ but the Sheriff persisted in selling the lands under the execution.” Under such circumstances, it would have been useless, if not impossible to tender the costs.

(Decided December 5th, 1865.)

Neither is there any question as to the right of the defendant, in the execution, to appear at the return day, and move to quash the writ or set aside the sale for irregularity. Moreland vs. Bowling, 3 Gill, 501. Nelson vs. Turner, 2 Md. Ch. Dec., 77. Waters vs. Duvall, 6 G. & J., 79. Waters vs. Peach, 3 G. & J., 412. The proceedings were “ in fieri,” the defendant, and those claiming under him, subsequent to the decree, were liable to he evicted under a writ of habere facias, if the sale should stand without objection. Notwithstanding his conveyance, he had such an interest in the sale, as entitled him to the protection of the Court, if the sale was made without authority of law, or under such circumstances as necessarily involved a sacrifice.

These reasons being sufficient to warrant the reversal of the order of the Circuit Court for Washington County as a Court of Equity, passed the 11th of September, 1863, refusing to set aside the sale. We deem it unnecessary to consider the other points raised by the appellants.

Order reversed, with costs to the appellant.