Littleton v. Yost

McFarland, J., delivered tlie opinion of the court. This was a petition to the circuit court r to supersede and quash an execution issued from said court and levied upon petitioner’s land upon the ground that the judgment had been paid and satisfied in full, or if not in full that petitioner was entitled to further credits, satisfying the judgment except a small sum. Issues were submitted to a jury, who found that the judgment had been paid except the sum of $230.08. The execution having been issued for a larger sum, the court gave judgment against the petitioner and his security on the certiorari and supersedeas bond for said sum of $230.08 and the costs, and also awarded an order of sale to sell the land so levied upon to satisfy said sum. The petitioner appeals, and his counsel assign two •errors. First that the court erred in ordering a sale of the petitioner’s land under the levy of the execution; and second, in adjudging the costs against the petitioner. First, it is argued that the effect of the certiorari and supersedeas was to discharge the levy of the execution and restore the property to the petitioner, substituting the bond and security in the place of the property levied upon. To support this position we are referred to the case of McCamey v. Lawson, 3 Head, 256. That case decides that such is the effect of a supersedeas upon the levy of personal property, [269] but concedes that such, is not the effect as to a levy upon land, and refers to the case of Overton v. Perkins, M. & Yer., 373, which was an injunction bill,, and in which it was held that the lien of an execution was not lost by the suspension of the sale by an injunction afterward dismissed, and it is said in substance that in strictness the rule ought to apply to personalty, but as to personalty an exception had to be made from necessity, for otherwise the property would perish often, and be lost pending the litigation. See also 8 Yer., 460. Previous to the Code when the writs were, as in this case, as a substitute for the writs of audita gurella the practice was not to render a new judgment on dismissal of the writs, but to proceed simply to execute the former judgment, and if the case came from a justice to award a procedendo. Kincaid v. Travis, 10 Yer., 252; Jones v. Williams, 2 Swan, 107, and other cases. But this was changed by the Code, and now the practice is well settled that in this character of case, as well as where the writs are used to obtain a new trial, upon a dismissal; a new judgment is rendered against the petitioner and surety for the amount improperly superseded. See 1 Head, 558, and other authorities collected in note to section 3137, T. & S.’s Code. The question would then be whether a lien on land acquired by levy of the execution improperly superseded could still be maintained and enforced, notwithstanding the new judgment. In cases of executions of justices of the peace, brought up by certiorari to be quashed, some practical difficulty might exist in giving a creditor both a new [270] judgment on the bond and also the benefit of the lien acquired by levy of the execution, but in cases like this, superseding an execution of the circuit court when the supersedeas is dismissed, no serious difficulty would be in the way of allowing the creditor both remedies, and we are of opinion that in such a case the lien of the execution is not lost, but that the creditor is entitled in addition to judgment on the bond. The present case presents this difference, that the levy sought now to be enforced was under an execution claiming a balance of over $500, whereas in reality only $230.08 was due. The effect of the judgment, however, is simply to quash the execution as to the excess, but enforce it as to the remainder, and the judgment is therefore correct. The next question is as to the costs. It is argued that as petitioner was forced to take steps to obtain the credits on the execution to which he was entitled, and having actually obtained the credit and shown that the execution was being run for near $300 too .much, that he was the successful party in the sense of sec. 3197 of the Code, which allows full costs to the successful party, except where otherwise provided. On the other hand, the petitioner superseded the whole execution, claiming that it was all paid, instead of pointing out truly, as he should have done, the amount actually paid. Had he taken the latter course the result would have been a successful prosecution of the cause on his part, and he would have been en [271] titled to costs. Having improperly superseded' the ■whole sum, the judgment against him for costs is justified by section 3138 of the Code. Judgment affirmed.