Jones & Co. v. Newman

Fish, J. 1. Nothing more appearing, a fi. fa. commanding levy to be made “on the goods and chattels, lands and tenements of [N., W. and R.], trustees of Zion Hill Baptist Church, or so much thereof as will make [stated amounts as principal and interest], which was adjudged against them at a justice’s court,” etc., is an execution against the three persons named in their individual capacities. The words “ trustees of Zion Hill Baptist Church,” being merely descriptio personarum, should be treated as surplusage. 2. Consequently, where such an execution was levied upon certain property as the property of N., and he filed a claim in which he set up that the property levied upon was his individual property, and [260] not that of “Zion Hill Baptist Church,” and upon the trial of the claim case the plaintiffs in fi. fa. introduced in evidence the execution with the entry of such levy thereon, a prima facie case was made out in their favor, the presumption being that the execution followed the judgment from which it issued. It was, therefore, erroneous, after this evidence was submitted, for the justice, upon motion of the claimant, to dismiss the levy upon the ground that the entry of levy showed that the execution had not been levied upon property of the defendant therein named. Submitted October 9, Decided October 28, 1899. Petition for certiorari. Before Judge Janes. Polk countyEebruary 15, 1899. Hal Wright and C. E. Carpenter, for plaintiffs. Fielder & Mundy, for defendant. 3. It follows that the judge of the superior court erred in refusing to ■ sanction the plaintiffs’ petition for certiorari, which set forth these facts and alleged error in the ruling of the justice. Judgment reversed. All the Justices concurring.