Lewis v. Lindley, 28 Ill. 147 (1862)

April 1862 · Illinois Supreme Court

28 Ill. 147

Thomas Lewis, Administrator of William Dougherty, deceased, v. Oliver Lindley et al.

MOTION TO AMEND EXECUTION.

An execution can be amended by the judgment as well after as before a sale.

This was an application to amend an execution issued from this court.

The affidavit in support of the motion states : that at the December term, 1837, of this court, one William Dougherty recovered a judgment against Oliver Lindley, and Irvin B. Doolittle, for the sum of $3,441.41. That an execution was issued on the judgment on the 26th of December, 1837, which was returned unsatisfied. That some time in the year 1839, the said William Dougherty deceased, and that Thomas was appointed his administrator, who had his letters filed in the office of the Supreme Court, and subsequently, on the 8th of July, 1843, an éxecution was issued on said judgment, directed to the sheriff of Bureau county, who, by virtue thereof, levied upon and sold the lands described in his return. That in issuing the execution, the clerk .of the Supreme Court made a mistake, and described the judgment incorrectly, and made a variance between the amount of the judgment and that expressed in the execution. That the execution was really issued on the aforesaid judgment.

That the lands levied upon and sold under the execution, were sold as the property of Oliver Lindley, in whom the legal title was at the time the judgment was rendered, and that a lien upon said lands was created by the judgment, and continued up to the time Lindley parted with them. That Irvin B. Doolittle long since died, but that himself nor his heirs had any interest in the land.

That after the judgment became a lien, Lindley sold the said lands to one John Lindley, who sold and conveyed to one Barber.

That Oliver Lindley has left this State, and that his residence is unknown. That William W. Heaton claims the land sold under mesne conveyances from Oliver Lindley, and that a notice of the motion has been duly served upon Heaton.

The controversy arising under this execution about the lands sold, in an action of ejectment, will be found in this volume.

E. H. Powell, for the motion.

W. W. Heaton, Contra.

Bbeese, J.

This is a motion to amend an execution issued out of this court, bearing date July 8, 1843, and directed to the sheriff of Bureau county. The motion is submitted in behalf of purchasers of land sold under the execution, and is resisted by parties claiming the land, through a sale and conveyance of the property by the judgment debtor before the execution was issued, but after the judgment was rendered. It is unnecessary to go at length, into the facts and arguments on this motion, as in the case of Durham et al. v. Heaton, decided at this term, they were fully reviewed and considered, and to that case reference is made.

It is a settled principle that an execution can be amended by the judgment, as well after as before a sale. Byhee v. Ashhy, 2 Gilm. 166, and cases there cited.

It is undeniable that this execution was designed to be issued as on the judgment rendered in favor of William Dougherty against Oliver Lindley and Irvin B. Doolittle, by the Supreme Court of this State, at its December term, 1837, for the sum of three thousand four hundred and forty-one dollars and forty-one cents, and after the death of the judgment creditor, letters of administration were duly granted to Thomas Lewis, as his administrator, in 1839, and which letters were duly recorded in the Supreme Court, upon which, the execution in question was issued.

The mistake alleged, is in the fact that the execution mistakes the amount of the judgment, it being issued for a larger amount than is specified in the judgment, and is also wanting in the recital that the judgment was recovered by William Dougherty, since deceased, upon whose estate letters of administration had been duly issued to Thomas Lewis.

In furtherance of justice, these amendments will be allowed. They are clerical errors, for which innocent parties ought not to suffer. The amendments of the execution will be made accordingly, by stating in it the precise amount of the judgment as rendered, and containing the recital as above.

Motion allowed.