Moore v. Ramsey

By the Court.

delivering the opinion.

[1.] The only question made in this case is, whether the two entries made on the execution, the one on the 27th Sept. 1842, the other on the 2d Nov. 1842, was such a return, made by the proper officer, as would take the fi. fa. out of the Dormant Judgment Act of 1823. That Act declares, that “ all judgments that may be hereafter rendered in any of the Courts of this State, on which no execution shall be sued out, or which executions, if sued out, no return shall be made by the proper officer for executing and returning the same within seven years, shall be void and of no effect, &c.” Prince, 458. The object of the Act was, to declare such judgments and executions dor*186mant, which had been slumbering in the Clerk’s office, or in the pocket of the plaintiff for seven years, without having been put in action, by being placed in the hands of the proper officer to make the money out of the defendant. Does this execution come within the true intent and meaning of this Act ?

The objection to the entry, made on the 27th Sept. 1842, purporting to have been a levy on the defendant’s property is, that it is not signed by any one; but it will be remarked, that on the 2d November thereafter, this levy was recognized by the Sheriff, as having been made on the defendant’s property, for, by his entry on the execution made on that day, he says: “ The above levy stopped by order of the plaintiff’s attorney, Nov. 2d, 1842. E. J. Cottle, Sheriff.”

Taking the two entries together, we think it is such a return on the execution, by the proper officer, within seven years, as will take it out of the Dormant Judgment Act. The entries, taken together, clearly show that the execution was in action at the time the same were made, and that the last entry signed by the Sheriff, is a satisfactory recognition that the first entry was made by the proper officer, although not signed by him, inasmuch as the Sheriff treats it as a levy, having been properly made when he disposes of it, by saying: “ The above levy was stopped by order of the plaintiff’s attorney.”

Let the judgment of the Court below be reversed.