Roberts v. Church

Church, J. The execution under which the plaintiff claims, issued from the superior court for Litchfield county, at its August term, 1840, and, as the defendant claimed, was originally dated August 25th, 1840, and returnable in sixty days. After the expiration of sixty days, it was renewed, as we term it, by the clerk of the court, who erased the first date, and inserted November 17th, 1840, its present date. After an immemorial practice in this state of renewing executions, by a change of dale, sanctioned, as it has been, by the courts, it may now be too late to enquire either into the propriety or necessity of such practice. The question here is, did the officer make a demand of the debtor of moneys &c, under authority of the same process which he afterwards levied upon the land in controversy ? He officially testifies, that he did ; and there is nothing to lead us to doubt the truth of his certificate, except the fact, that the present date of the execution is subsequent to the time when the demand is stated by the officer to have been made, viz. 10th of October, 1840. An execution derives its force, as it docs its existence, from the judgment of the court, followed by the official signature of its clerk. The actual time when an execution is issued, is determined by the record ; and if it has no date, or a mistaken or impossible one, we do not see how its effect as a compulsory writ, is thereby destroyed. The officer may therefore truly certify, that he acted under that execution, notwithstanding its date, provided he acted, after it was issued, by authority of the court. We do not here intend to say, whether an execution, after its return day has passed, is an effective process, or not. In the present case, the execution was operative, when the demand was made, on the 16th day of October, 1840; and that was a legal demand. Was [145] it necessary that the demand should have been repeated, after the 17th of Novpi/iber IS to ! We think not. The subsequent proceedings were all under the same writ. Although our practice has been general, that the clerk of the court may renew an execution, without an order from the court, and even that a party may himself change the return, day ; yet it has never been claimed, that a renewed execution is a different one, deriving its efficacy from a mere change of its date, rather than from the original signature of the clerk. This is entirely unlike an alias execution. Such a process issues either upon scire-Jacias or otherwise, where the original execution has been returned into court, or has been lost, or for some cause has become legally extinguished as a writ. The alias, in such case, is another and different execution, actually issued at a different time. In the present case, no other writ of execution has ever been issued: the clerk has never affixed his official signature to any oilier. This is the identical paper, with the identical signature, which was issued by the superior court, at its August term 1840, without an alteration in any essential particular, except a change of its date. If the date of a deed or other writing is lawfully changed, as by the agreement of parties, does it thereby become a different deed ? The demand, therefore, having been made upon this execution, while it was in full life, and the levy of it having been made, while it was an operative writ; the proceedings were lawful, and there ought not to be a new trial. In this opinion the other Judges concurred, except Storbs5 J., who was absent. New trial not to be granted,