Azcarati v. Fitzsimmons

WASHINGTON, Circuit Justice, delivered the opinion of the court The firsrt question is, whether Mr. Lewis, in whose behalf this motion is made, is entitled to the money returned by the marshal, as levied, in satisfaction of the plaintiff’s execution ? If he would have been entitled, in case his right had accrued upon a judgment of this court, his case will not be different because his judgment was obtained in a state court. This is not the only remedy which a party has, to redress himself against an officer who applies to the satisfaction of some other judgment, the proceeds of property which is bound by the execution of such party. But the practice of deciding upon motion, the priorities and rights of contending parties, for money raised by the officer upon execution, and brought into court, contributes to the conven* ience of those parties, and to the safety of the officer. It saves expense, and prevents multiplicity of suits. Nevertheless, the court will take care, that the person who is authorized to take out the money, is entitled to the same, under a regular execution, and that ihe proceedings under it have been regular. If such irregularity appears, as in the opinion of the court is sufficient to set aside the execution; the court will not interfere in a summary wajr, in favour of the party, but will leave him to his other remedies, and will leave the officer to act in such maimer as he may think most safe. Por, it would be not less absurd than mischievous, to permit a person to take money out of court, under the authority of an execution, which, the court from which it issued may, and ought, to set aside for irregularity. The question then is, whether the execution, under which Mr. Lewis claims, has been regularly issued? The objection that it issued more than a year and a day after the judgment, without a scire facias to warrant it, seems to the court fatal. It is true, that if the first execution, which was taken out within the year and day, returnable to December 1800, had been regularly continued down to the period when this execution issued; or if that execution had been returned and filed, so that the continuances could be considered as entered; this objection might be removed. And yet, even in that case, there might be considerations sufficiently weighty with the court, to forbid them from supplying the wrant of regular continuances in favour of an ancient, dormant, execution, to the disadvantage of other creditors having equal equity, although they may have been equally faulty. But it is unnecessary, in this case, to consider the comparative merits of the contending parties for this money, since the court is of opinion, that the irregularity of the proceedings of the present applicant, is.fatal to his pretensions.