Lowber & Wilmer's Appeal

The opinion of the Court was delivered by Kennedy, J. It is unnecessary to notice all the different points raised and discussed in this case, as there is one which, when rightly decided, will dispose of the whole of it. Because it is clear, if it was competent only for the defendants named in the execution in favour of Lowber & Wilmer and for no others to object to the validity of it, that the decree of the court below must be reversed and a decree passed in favour of Lowber & Wilmer, who sued out and placed their execution first in the hands of the sheriff. The execution issued in favour of these gentlemen was founded upon a judgment entered in their favour in a court of competent jurisdiction, apparently regular as it would seem from the record, and such as justified the issuing of the execution. In Stewart v. Stocker, (13 Serg. & Rawle 199), it was held that an execution issued before the stay of execution had expired was irregular but not void, and that its validity could not be called in question by another execution creditor, who sued the sheriff for the proceeds. That case was substantially pretty much like the present. There the judgment upon which the execution was issued, was given, as the judgment was here, to secure the payment of several notes given by the defendants in the judgment to the plaintiffs in liquidation of a previous debt owing by them and made payable within limited [390] periods from their respective dates; and the execution was sued out before a failure on the part of the defendants to pay any of their notes at maturity had taken place; yet this court held the execution good against a subsequent execution sued out regularly by Mr Stocker against the same defendants and placed in the hands of the sheriff to be executed, and that it was not competent for Mr Stocker or any other execution creditor to object to or take advantage of the irregularity that existed in issuing the first execution. The existence and justness of the debt was not questioned there, nor has it been here; so that no complaint was made against the issuing of the execution on the ground of fraud, a thing that undoubtedly any execution creditor would have a right to make, and the court would be bound to hear him. But where the objection extends no further than that the judgment upon which the execution has been issued has been erroneously entered or obtained, or the execution erroneously issued thereon, no other person than the defendant therein or his legal representatives, will be permitted to make it. Nor will they be permitted to do so in a collateral action or other manner than by suing out a writ of error or by making a direct application to the court in which the judgment is entered or from which the execution has been issued, to vacate or set the same aside. This course is settled by a train of authority in this State which cannot be contested or resisted. Besides the case of Stewart v. Stocker already cited, to show that it is so, I will refer to 2 Serg. & Rawle 155-6; 1 Watts 139; 4 Watts 341; 2 Watts & Serg. 557; 5 Ibid. 460, 474. From which it will likewise appear that a contrary principle laid down by the late Mr Justice Washington in Azcarati v. Fitzsimmons, (3 Wash. C. C. 134), has been most clearly and decidedly overruled. The decree of the court below reversing the report of the auditor in favour of Lowber and Wilmer is therefore reversed; and it is further decreed by this court that the amount of the debt and interest appearing to be due to them at the time of the sale made of the goods by the sheriff, be paid to them out of the moneys in the court below, after deducting all costs which have accrued, including the costs of this appeal; and that the residue of the money so made and remaining there be paid to the Pennsylvania Company for Insurance on Lives, in satisfaction pro tanto of their debt. Decree reversed.