Neil v. Colwell

The opinion of the court was delivered, January 3d 1871, by Read, J. — Judgment was entered in the Common Pleas of Jefferson county, in a scire facias sur recognisance, in favor of Alexander Colwell, against Thomas N. Neil, on the 16th April 1860, for $1689.62. On this judgment on the 25th May 1860, a fi. fa. was issued to September Term 1860, on which real estate was levied, inquisition waived and property sold to J. O. Kennedy for the sum of $90. On the 8th May 1863 a testatum fi. fa. to September 1863, was issued to the sheriff of Indiana county, who delivered the same to the prothonotary of Indiana county, who forthwith entered the same of record, on the proper dockets, and thereupon re-delivered the said writs to the said sheriff, to be by him executed. The said testatum writ of fieri facias became a lien upon the real estate of the defendant during five years from the date of such entry. By virtue of this writ the sheriff levied upon'the interest of defendant, in a certain tract of land in Indiana county, upon which inquisition was held and property condemned. A testatum venditioni exponas to September 1885 was issued to the sheriff of Indiana county, which was stayed by an injunction issued by an associate judge of Jefferson county, which was dissolved on the 15th September 1865, and an alias venditioni was issued on the 23d of the same month to the said sheriff, who sold on the 8th December 1865, the land levied on to John A. Col-well and James E. Brown for $500: on the 15th February 1866; a rule was granted to show cause why this writ, and all proceedings under it, should not be set aside, which on the 15th September 1867 was discharged by the court. The present writ of error is to this last action of the court, and the error assigned is the discharge of the rule by the court. During all the proceedings under the testatum fi. fa., and the several writs of venditioni exponas issued under it, the testatum [218] fi. fa. was a lien on all the lands of the defendant in Indiana county, and the original judgment was in full force when the property was levied upon, and condemned in Indiana county. When the alias testatum vend. exp. was issued and executed, the lien was in full force and vigor in Indiana county, and the parties to the original proceedings and judgments were in full life, and the case of Wood’s Executors v. Colwell, 10 Casey 92, has therefore no application to the present question. “ The venditioni is not a process distinct from the fi. fa., but a part of itHughes v. Rees, 4 Meeson & Welsby 468: and refers back to the fi. fa., which is conceded to be entirely regular. The court were therefore right in discharging the rule. Judgment affirmed.