O'Donnell v. Mullin

[202] The opinion of the court was delivered by Black, J. If a justice of the peace issues execution on a judgment within the time allowed for an appeal, and the appeal is taken afterwards, it is the duty of the justice to revoke the execution. When the justice notifies the constable that an appeal has been entered, and the execution superseded, the constable is bound to return the execution and proceed no further upon it. If the constable persists in selling the defendant’s property under an execution thus superseded, he is a trespasser as much as if he had no process at all in his hands. The appeal strikes the execution dead, and everything done afterwards in the way of levy or sale under it is void. A purchaser therefore at the constable’s sale takes no title. It is the business of the justice, not of. the constable, to determine whether the appeal is regularly taken or not. If the justice allows it, the rights which it gives to the party cannot be lawfully withheld from him by the constable on the pretence that the justice committed an error. Judgment affirmed.