Trigg v. Ross

Bates, Judge, delivered the opinion of the court. This is an action of ejectment. The plaintiff having a judgment against the defendant, caused an execution thereon to be issued. After the execution had been issued and delivered to the sheriff, the clerk of the court from which it issued, at the instance of the plaintiff, changed the words of the execution so as to make it returnable at a time different from that named in it as originally issued. The sheriff, proceeding to act under the execution, sold a lot, which was bought by the plaintiff, who then brought this suit to recover possession of the lot. At the trial of this, case, the court gave the following instruction: “ If the clerk of the court, under a misapprehension of the instruction of the plaintiff or otherwise, originally issued said execution returnable to the second succeeding term of the court after the date of its issue, instead of üiq first succeeding term thereof, and delivered the same to the sheriff; and afterward and before any action was taken by virtue of said execution or any levy made, said clerk, at the instance of the plaintiff, corrected said execution so as to make it conform to the real instructions of the plaintiff, and returnable at the first instead of said second succeeding term, then such alteration or correction does not affect the legality or validity of the sale made under and by virtue of said execution.” There was judgment for plaintiff. We regard the instruction, as worded, to intend that the clerk in changing the execution acted as the agent or representative of the plaintiff, and so regarding him, the instruction is erroneous. The clerk is, by statute, expressly forbidden to amend or impair any process, pleading or record, without the order of the court; and, consequently, any such [168] unauthorized change made by him in an execution would be (as in the case of such change made by a stranger) mere spoliation, and would have no force to alter the legal effect of the writ. If, however, the plaintiff in the execution made the change (by thé hand of the clerk), he thereby invalidated the writ as to his beneficial interest under it; and having become himself the purchaser of the land, the sale to him under the altered writ was void. It might well be, that if a stranger, ignorant of the alteration, had become the purchaser, the sale would have been valid; but that is not the case we are called upon to consider. As the case.does not make it entirely certain that the Circuit Court regarded the act done by the clerk as the act of Trigg, the case will be remanded, so that, if necessary, that question of fact may be tried. Judgment reversed and cause remanded. Judge Dryden concurs; Judge Bay absent.