Lewis v. Lindley

Bbeese, J. This is a motion to amend an execution issued out of this court, bearing date July 8, 1843, and directed to the sheriff of Bureau county. The motion is submitted in behalf of purchasers of land sold under the execution, and is resisted by parties claiming the land, through a sale and conveyance of the property by the judgment debtor before the execution was issued, but after the judgment was rendered. It is unnecessary to go at length, into the facts and arguments on this motion, as in the case of Durham et al. v. Heaton, decided at this term, they were fully reviewed and considered, and to that case reference is made. It is a settled principle that an execution can be amended by the judgment, as well after as before a sale. Byhee v. Ashhy, 2 Gilm. 166, and cases there cited. It is undeniable that this execution was designed to be issued as on the judgment rendered in favor of William Dougherty against Oliver Lindley and Irvin B. Doolittle, by the Supreme Court of this State, at its December term, 1837, for the sum of three thousand four hundred and forty-one dollars and forty-one cents, and after the death of the judgment creditor, letters of administration were duly granted to Thomas Lewis, as his administrator, in 1839, and which letters were duly recorded in the Supreme Court, upon which, the execution in question was issued. The mistake alleged, is in the fact that the execution mistakes the amount of the judgment, it being issued for a larger amount than is specified in the judgment, and is also wanting in the recital that the judgment was recovered by William Dougherty, since deceased, upon whose estate letters of administration had been duly issued to Thomas Lewis. In furtherance of justice, these amendments will be allowed. They are clerical errors, for which innocent parties ought not to suffer. The amendments of the execution will be made accordingly, by stating in it the precise amount of the judgment as rendered, and containing the recital as above. Motion allowed.