Caudle v. Dare, 7 Ark. 46 (1846)

April 1846 · Arkansas Supreme Court

7 Ark. 46

Caudle, adm’r of Poe vs. Dare & Caruthers.

Where an execution was levied upon personal property, the benefit of the appraisement act of 1846'claimed by defendant, the property failed to bring two thirds of its appraised value when offered for sale by the sheriff, and was returned to defendant, the levy was not a satisfaction of the execution. Walker vs. Bradley, 2 Ark. Hep. 578, cited.

And in such case the plaintiff was entitled to an alias execution to procure satisfaction of his judgment.

Writ of Error to the Circuit Court of Pope County,

John Caudle, as administrator of Joseph Poe, obtained judgment, in an action of debt, against Thomas J. Dare and Andrew N. Caruthers, in the circuit court of Pope county, at the October term, 1841.

On the 29th August, 1842, an execution was issued upon the judgment to the sheriff of Pope county, returnable to the following term of the court. The sheriff levied it upon two horses and one jack, the defendants claimed the benefit of the appraisement act of 23d Dec., 1840, and the property failing to bring two-thirds of its appraised value, when offered for sale by the sheriff, the sale was postponed under the provisions of the act, and the property returned to defendants.

On the 9th of November, 1843, an alias execution was issued, returnable to the March term of the court following. The sheriff levied the writ on lands of defendants, and advertised them for sale, hut on the first day of the term to which the writ was return* able, and before the lands were sold, the court quashed the execu* tion, on motion of defendants.

On the 27th November, 1844, a pluries execution was issued, returnable to the following March term of the court, which the sheriff levied upon land. On the first day of the return term, defendants moved to quash the writ, which motion the court sustained, the plaintiff' excepted, took a bill of exceptions, and brought error.

W. Walkeh, for the Plaintiff.

The circuit court erred in quashing the execution and rendering judgment against the plaintiff' for costs. The practice of quashing executions on motion, is often productive of the greatest injustice, and is in direct contravention of the 70th, 71st and 72d sections of the 60th chapter of the Revised Statutes.

This court has decided that an alias execution is not void, although the return of the sheriff upon a former execution shows that property has been levied upon to satisfy the ‘same demand, and awarded a writ of ven. ex. to sell the property levied upon by the alias. Cummins v. Webb, 4 ml. Ark. Rep. 229.

The true rule is, that where a levy under execution is made upon personal property of sufficient value to satisfy the execution, and the property so seized does not again come to the possession of the debtor, the levy is a satisfaction as to that creditor, and as to him only. But if the debtor again receive the goods, there is no satisfaction. Walker v. Bradley, 2 ml. Ark. Rep. 578.

Batson, contra.

Oldham, J.,

delivered the opinion of the court.

The circuit court most manifestly erred in quashing the plaintiff’s execution. The personal property levied upon by virtue of the original execution being returned to the defendants, did not satisfy the execution. Walker v. Bradley, 2 Ark. 278. In such a case the plaintiff was entitled to an alias execution to procure satisfaction of his jüdgment. The second execution issued upon the judg-^ ment in this case being also quashed by the circuit court,- the plurihs regularly issued. The order of the circuit court quashing the pluries execution must be reversed and set aside, and this, cause be re-* lnanded with directions that the plaintiff have leave to sue out a writ of venditioni exponas for the purpose of selling the property specified in the sheriff’s return as having been levied upon.