Dean v. Bowles

Smith, C. J., delivered the opinion of the court. (After stating the facts as above). The amendment of the affidavit, by adding the name of the justice before whom it was made to the jurat thereto, was unnecessary for the reason that no one but a defendant in execution can complain of the premature issuance thereof. 1 Freeman on Executions, Section 25. Two of appellant’s assignments of error are: First, that an attempt had been made to materially alter the note upon which the judgment on which the execution in question was issued was rendered; and, second, that the suit on which this judgment was rendered was prematurely brought. Neither of these objections can be inquired into in a collateral proceeding such as the one here under consideration. The cases of Wiggle v. Thomason, 11 Smedes & M. 452, and Winston v. Miller, 12 [577] Smedes & M. 550, cited by counsel for appellant in support of tlie second objection herein referred to, are not here in point for the reason that the question there arose on direct appeals from the judgments complained of. The sale of the property here in question having been made to appellant in violation of our Bulk Sales Law (Laws 1908, chapter 100), the court below committed no error in granting the peremptory instruction. Affirmed.