delivered the opinion of the court.

The appellee, on the 19th of April, 1839, caused an execution to issue against the appellant, from the circuit court of Neshoba county, upon a judgment which he had previously obtained. The execution was returnable to the following October term of the court, and was returned satisfied in full. At the fall term, 1840, of the court, a motion was entered to set aside the return, because it was false, and the motion was continued till the May term, 1841. No notice appears ever to have been given either to the sheriff, whose return was sought to be set aside, or to the defendant in the execution. At the term to which the case was continued, the court gave judgment that the return was false, and should be quashed, and directed a new execution to issue. The record does not show that any one appeared to make defence, and the whole proceedings seem to have been ex parte.

The want of notice, unless there had been an appearance by the opposite party, is a fatal defect. It is insisted that, as there is no bill of exceptions, everything will be presumed to have been rightly done. There is no room for a presumption of this *260kind, when the adversary party had no opportunity to file exceptions.

It is unnecessary to notice the other points in the cause.

The judgment of the court below will be reversed, and the motion is overruled for want of notice.