Artope v. Barker

Jackson, Chief Justice. [An execution in favor of Barker against J. B. Artope, as trustee for his wife and children (naming them), was levied on certain lots. The cestuis que trust named, together with J. B. Artope, as guardian of the minor children of a deceased daughter, a Mrs. Hodgkins, filed an affidavit of illegality on various grounds.. The original fi. fa. having been lost before the trial, a copy was established on motion. Defendant moved to dismiss the levy because the copy established bore date November 1,1883, while the fi. fa. purported to have been issued, and the levy to have been made in November, 1881. The court permitted the established copy to be amended so as to substitute 1881 for 1883, it being shown to him that this was a clerical error, and refused to dismiss the levy. Plaintiff demurred to the affidavit of illegality, and moved to dismiss it, and by consent the entire record was considered by the court in passing on the demurrer. He sustained the demurrer, and dismissed the affidavit. Defendants moved for a new trial, on the following grounds: (1.) Because the court refused to dismiss the levy,. (2.) Because the court dismissed the affidavit of illegality. The motion was overruled, and defendant excepted.]