Hovey v. Niles

The opinion of the court was delivered by Isham, J. The judgment of the-county court in this case must be affirmed. It appears from the exceptions that the judgment in favor of Niles, against Hovey, was rendered on the 14th of October, 1852, for a sum exceeding $53,00, exclusive of costs. The execution was issued on the 28th day of October, in the same year, and made returnable in sixty days from date, and on the same day, was placed in the hands of a deputy sheriff for service and collection. This suit was commenced on the 7th of December, 1852, for the purpose of setting aside and vacating that execution. In cases of this character, the statute requires the execution to be made returnable,in 120 days, and if it otherwise issues, the execution is considered as irregular and void. This question has been frequently decided in this state. In the case of Bond v. Wilder, 16 Vt. 393, Ch. J. Williams remarked, “that an ex- “ ecution returnable in 60 days, instead of 120 days, is irregular, “ and void, and not authorized by any statute of this stateand it was held, that a levy .and sale of property on such execution, rendered the party a trespasser. He further observed that the question had been so often decided, that it would be improper for the court now to investigate the question at all. In such cases the writ of audita querela is a proper remedy to set aside the execution, and relieve the party from the danger of a seizure of his property, or an arrest of his person. The right to sustain this suit is not affected by the fact, that the officer had not called upon the debtor for the execution, nor made any effort to collect it, as the 60 days from the date of the execution had not expired. Neither will the circumstance, that the magistrate had requested the execution to be altered, or that the term of office of the deputy sheriff had expired, have any such effect. [544] The Comp. Stat. 99, sec. 30, provides that officers may perfect and perform the duties of such officers, upon all processes in their hands, at the time of the expiration of their office. So far as this execution is concerned, therefore, the power and duty of this officer remained the same as it was when he received the execution in his hands for collection; and so long as the execution was permitted to remain in his hands unaltered, during its life the debtor was subject to a seizure of his property, and the levy of this execution. To avoid which, he is entitled to a remedy by this process. Judgment of the County Court affirmed.