Wheeless v. Rowan

Evans, P. J. Where a judgment of a lower court is affirmed by the Court of Appeals, upon filing the remittitur with the clerk of that court in vacation, the supersedeas shall cease, and execution shall issue at once for the amount of the original judgment. Civil Code (1910), § 6217. If the judgment of the city court of Nashville had been affirmed by the Court of Appeals without direction, execution could have issued upon the original judgment. But the judgment was affirmed on condition that the plaintiff write off a certain amount of interest and attorney’s fees, and that ■if this’ were not done the judgment be reversed. Compliance with the judgment of the Court of Appeals required that the original judgment be amended before an execution could issue upon that judgment. Until amendment was made, no execution could lawfully issue. The judgment was not amended until sales day. The. execution, therefore, was proceeding illegally against the defendant when the affidavit of illegality was given to the sheriff, and he should have accepted it. The amendment of the judgment on sales day did not cure the failure to comply with the judgment of the Court of Appeals, so as to validate the previously issued execution. The testimony disclosed that there was considerable difference between the value of the property sold and the price paid, and it may be that this irregularity suppressed bidding. In his answer the plaintiff in the judgment set up that the judgment upon which the execution issued was founded upon a note for the purchase of the land, and that there were also other purchase-money notes unpaid. The denial of an injunction was conditioned upon the plaintiff in the judgment filing with the clerk of the superior court these unpaid purchase-money notes. We do not think that the court could cure an invalid sale by requiring certain notes to be surrendered to the defendant in execution. When the property of a citizen is seized under the law. for the purpose of sale, he has the right to insist that the seizure be by virtue of a valid process; and if the process is invalid, the sale should not take place. Judgment reversed. All the Justices concur.