Burke v. Levy's executors

November 26 Judge Roane, delivered the opinion of the court: The court is of opinion, that as the jurisdiction in this case was given to the Superior Court, to proceed by motion in a summary way, although that court might have called in a jury to decide the points submitted by the plea, it was not compellable to do so, under the distinction taken by the court in the case of Watson vs. Alexander.(a) The court is also of opinion, that although there may still exist an excess in the judgment of the Superior Court beyond the sum due by the execution, yet that execution not having been made a part of the record, by bill of exceptions or otherwise, and no objection having been made to the judgment on this point in the court below, that objection ought not to be now sustained in this court under the case of Bronaughs vs. Freeman. (b) There is no error, therefore, in the judgment, and it is to be affirmed. Footnotes [(a)] 1 Wash. 356. [(b)] 2 Munf. 266.