Fiske, Knight & Co. v. Lamoreaux

Currier, Judge, delivered the opinion of the court. This was a proceeding by motion to quash an execution. It appears from the record that the firm of Lamoreaux & Co., in November, 1869, recovered a judgment in the Washington county Circuit Court against one Lumpkin for $2,369.50. An execution was issued and returned satisfied only in part, to-wit: $500. September 13, 1870, an alias execution was sued out for the benefit and to the use of Andrew Casey, who had taken an assignment of the judgment. This execution was levied on the real and .personal property of the execution debtor. In October, 1870, the plaintiffs in error-obtained a judgment against the same party, on which an execution was duly issued. On the 13th of October, 1870, their attorney appeared in court and filed a motion to quash the alias execution which had been issued to the use of Casey, alleging as the ground of the motion, that the judgment upon which the [524] execution issued bad been paid and satisfied through collections under the prior execution. The court overruled the motion, and Fiske & Co. bring the case into this court by writ of error, insisting that their motion ought to have been sustained. It, is- questionable, to say the least of it, whether the plaintiffs in error were in a position to appear in the case where they were jibt'parties of record and submit the motion in question. But waiving that point, I find, on looking into the. record,.that the action of the court below was justified by the state of the evidence. It appears that the Lamoreaux judgment was duly assigned to Casey by a writing bearing, date May 10,.1870; that he paid the amount due on the judgment in consideration of the assignment.and as a purchaser, .and not in the way .of extinguishing the judgment. Lamoreaux’s attorney, who is chiefly relied upon to prove the alleged-satisfaction, and to whom Casey paid the money, is not able .to.state that Casey paid.a dollar..prior .to the. assignment. He is not certain on-.that point. There seem to have been several payments.:. It appears that Casey interposed in the matter in aid of Lumpkin, and procured some .delay,assuring the sheriff verbally that. he (the sheriff) should not suffer thereby; that he (Casey) would indemnify him. The whole transaction shows that Casey looked to the judgment as a security for the advances which .he ultimately .made; that he made these advances as a purchase and not with a view to the satisfaction of the judgment. Lamoreaux & Co. did not regard the judgment as paid by Cásey, as their assignment of it shows. The- assignment particularly provides for an enforcement of the judgment by .Casey, and at his own risk and cost, and the assignment was made a number of months before th.e plaintiffs in error obtained their judgment. I,see no adequate ground for disturbing the order of the court overruling the motion to quash. Judgment affirmed. The other judges concur.