Hawkins v. Lewes Journal Co.

The Chancellor. First, as to the objection that the claim is not properly verified under the rule, it appears that, the judgment was obtained by Benjamin F. Bond, trading under the firm name of B. F. Bond Paper Company: The verification is by Benjamin F. Bond, Jr., treasurer of B. F. Bond Paper Company. Solicitor for the claimant admits that B. F. Bond Paper Company is a cor-, poration, it having been incorporated since the judgment was obtained and having succeeded to the business of the individual/ B. F. Bond, trading as aforesaid. No assignment of the judgment is shown to have been made to the corporation. In this state of the record, the exception should be sustained. The claimant may, however, have leave to amend its claim by showing that it is the present owner of the judgment. Second, as to the claim of priority under the execution, the exception will be sustained. The pertinent statutory provision dealing with executions issued by justices of the peace, is found in Revised Code 1915, Par. 4023, and is, as follows: “It [process of execution] shall bear date of the day it is issued, and shall [319] be made returnable on a day certain, not more than six, nor less than three months, thereafter.” The execution in question was issued February 5, 1921, and made returnable February 26, 1921, a period of twenty-one days. The express and positive provision of the statute was, therefore, disregarded by the justice. Whatever might be the view with regard to an execution issued out of a court of record of general jurisdiction and made returnable at a time earlier than the law specifies — whether it is merely irregular and voidable, or altogether void — I am clearly of the opinion that such an execution as was issued by the justice of the peace in this case was void. On certiorari to the Superior Court, objection to it as returnable at too early a date would have been fatal. While the court of a justice of the peace is a court-of record, yet it is a court of inferior jurisdiction. Such a provision of law as is found in the above referred to section must be strictly followed in the justice’s court.' The following cases amply support this view. Stevens v. Chouteau, 11 Mo. 382, 49 Am. Dec. 92; Estes v. Long, 71 Mo. 605; Toof v. Bently, 5 Wend. (N. Y.) 276; Farr v. Smith, 9 Wend. (N. Y.) 338, 24 Am. Dec. 162; Bond v. Wilder, 16 Vt. 393; Jameson v. Paddock, et al., 14 Vt. 491. While the claim may be allowed as a general claim, if amended as indicated, yet for the reasons just stated it cannot be' allowed as a prior one. Let an order be entered accordingly.