Massey v. Gardenhire, 12 Ark. 638 (1852)

Jan. 1852 · Arkansas Supreme Court

12 Ark. 638

Massey v. Gardenhire.

An execution by the Justice of the Peace and a return of nulla bona, are pre-requi-sites to the filing the transcript of a judgment of a justice of the Circuit Court and the issuance of execution therefrom.

But it is not necessary that the execution from the Circuit Court on such judgment, should recite the fact of such issuance and return of execution.

This Court ■will presume in favor of the judgment of the Court below, unless the record clearly shows that the Court erred.

Appeal from Lawrence Circuit Court.

The appellee filed his petition in the Circuí Court to quash certain executions issued by the clerk of the Circuit Court of Lawrence county, which he averred were issued “without authority of law and without any legal or valid foundation, that no judgments have ever been obtained in said Circuit Court, or any other proceedings had there to authorize executions to issue. That they are void upon their face, and should be quashed.”

The execution copied into the transcript recites a judgment rendered by a Justice of the Peace against the appellee in favor of the appellant, “which was filed in the office of the clerk of the county aforesaid.”

The judgment of the Court recites the filing of the petition “to quash the execution in this case in the hands of the sheriff of this county sued out heretofore on a judgment spread upon the records of this Court by a transcript from a Justice of the Peace, with a prayer therein in said petition,” &c.

The Court quashed the execution, and the defendant appealed.

Fairchild, for the appellant.

The petition to quash the execution was too vague and indefinite to justify any action in support of it — the petition should have shown in what the execution was defective, and why it was void. 2 Ark. 278. 19 John. Rep. 36. 9 John. Rep. 291. Chit. Pl. (8 Am. Ed.) 214, 233. Boyce v. Brown, 7 Barb. 80.

The execution was not void on its face. The issuing of an execution by the justice and return of nulla bona, were pre-requi-sites to the filing of the judgment in the Circuit Court and the issuance of an execution from the latter Court; but it was unnecessary to recite these facts in the execution; no more than it would be necessary to recite the affidavit for a ca. sa. under sections 3, 6, ch. 67, Dig., or sections 7, 8, 9, ch. 136, Dig. See the case of Steel v. Vandervoot, 7 Yerg. 436. Wickham v. Miller, 12 J. R. 320. Chapman v. Fuller, 7 Barb. 72.

Byers & Paterson, contra,

contended that the execution issued from the Circuit Court on a Justice’s judgment, must recite all the pre-requisites prescribed by sections 139, 140 ch. 95 Dig., or the sheriff would not be bound to execute it, and that the execution was properly quashed.

Mr. Justice Scott

delivered the opinion of the Court.

The execution in question was prima facie good. It was not necessary that there should have been a recital in it that an execution had been previously issued by the Justice of the Peace and returned “no property found,” although this was an indispensable pre-requisite as a step in the proceedings. Nevertheless, as the petitioner sought its quashal upon the ground that it “was issued without any authority of law, and without any legal or valid foundation,” and the opposite party appeared and contested the motion and the court granted it, we must presume that the Court decided correctly unless the contray appears upon the record.

And in looking through the transcript we find that the justice’s judgment was for a sum over ten dollars; that the transcript was filed with the clerk, and spread upon the records of the Circuit Court, but it does not appear either by bill of exception or otherwise that in fact an execution had been previously issued by the Justice of the Peace and returned nulla bona; consequently, in support of the judgment below, we must presume that, upon the hearing, the Court looked to its own records, and, finding this hiatus in the proceedings, quashed the execution for that cause.

The judgment must be affirmed.