Walter v. Palmer

Davison, J. This was a proceeding by notice and motion to correct a levy and return of an execution. The appellees, Courtlancl Palmer and Francis T. Wallace, were the plaintiffs, and William Fstill, Matthew Jack, Walter March, as executor of John Jack, deceased, and Susan, Fmily and Martha Jack, heirs of said deceased, were defendants. The notice is directed to the defendant, and alleges these facts: At the March term, 1858, the plaintiffs, Palmer and Wallace, recovered a judgment in the Delaware Circuit Court against John Jack, then in life, but now deceased, William Estill and Matthew Jack, for 1,172 dollars. On the 19th of July, 1859,!an execution was duly issued, upon this judgment, to the sheriff of Delaware county, who levied the same “ on the west half of the south-west quarter, and the south-east quarter of the south-west quarter, and the west half of the north-east quarter of the south-west quarter of section 26, township 22, north of range 10 east, and the following tract, commencing on the north-west corner of Peter Allen’s three aeree lot, at a rock in the middle of the Walnut street turnpike, thence running east 295T7o% feet to a stake, thence north 147T608,-'feet to the place of beginning; being a part of the south-west quarter of sec. 15, township 20, range 10, containing one acre, more or less, all in said county of Delaware.” It is averred that the sheriff advertised said lands for sale •on the 27th of August, 1859, and that by his mistake and negligence he omitted to enter and record on said execution all [280] that part of the land described as being in section 26, township 22, range 10, and also, by his mistake and negligence, he failed to get and record a true description of the one acre piece above described as being in sec. 15, township 20, range 10. The notice concludes thus: “You are, therefore, notified that, on the second day of the next term of said Circuit Court, the plaintiffs will move to correct said levy and return and make the same read as herein described.” , The defendants demurred: 1. To the notice. 2. To that part of it which relates to the lands situate in section 26; and 8. There was a separate demurrer for a defect of parties. The first and third demurrers were overruled, and the second sustained. Defendants answered by four paragraphs: The first, second and third led to issues of fact; to the fourth the Court sustained a demurrer. The issues were submitted to the Court who found for the plaintiffs, and having refused a new trial, adjudged that the said levy and return be collected, as moved by the plaintiffs. These various rulings of the Court, in overruling the demurrers to the notice, in sustaining the demurrer to the fourth paragraph of the answer, and,in refusing a new trial, are assigned for error. As a general rule a sheriff may be allowed to amend his return on an execution, where it defectively describes the lands levied on; but the Court, though it may allow him so to amend, has no power to compelhimto do so, or to make an order directing such amendment to be made. And if the notice and motion in this case be regarded a complaint to allow the sheriff to make the proposed amendment, it is, plainly, defective; because the sheriff, who is alone author-. ized, by permission of the Court, to correct his réturn, ought [281] to be, but is not, made a party to tbe proceeding. Allen on Sheriffs, p. 260. Walter March, for the appellants. David Nation, for the appellees. Per Curiam. The judgment is reversed with costs. Cause remanded.