Wheeler v. Harrison

Jackson, Judge. A rule nisi was served upon the sheriff to show cause why he had not made the money on plaintiff’s fi. fa. The sheriff showed in his answer that defendant had moved to set aside the judgment, and that defendant had served him with a copy of his motion, or rule nisi, signed by the judge. No supersedeas was granted. The court below made the rule absolute. We think the court did right. It will not do for defendants to move rules nisi, granted as matter of course usually, obtain no supersedeas, and notify the sheriff simply that they have made the motion, and thus stop the plantiff’s fi. fa. from proceeding. The sheriff should have gone on and executed the process of the court, unless the rule nisi had instructed him not to do so. After the rule was made absolute, the sheriff was attached without being served with a rule nisi to show cause why he should not be attached for contempt. We think this was error, and reverse the judgment on that ground. [25] The sheriff might show some reason against the attachment, and should have the opportunity to give it. Judgment reversed.