State v. Booker
State v. Booker
Opinion of the Court
delivered the opinion of the court.
Where an execution issues from this court and is levied upon personal property, it is not admissible for a third person, claiming such property, to interpose a claimant’s issue thereto, but he should sue out his writ of replevin against the officer, who has the property in his possession.
This court has no power to try any issue of fact not necessary to be decided for the disposition of an appeal pending here. Code 1880, § 1412. Section 2633 of the Code, prohibiting actions of replevin in certain cases, is not applicable to cases in which property has been levied on by virtue of the process of this court, because no remedy is given to the claimant to interpose his claim by the statute; and he may therefore resort to an action of replevin. An alias writ oí fieri facias should be issued.
Ordered accordingly.
Reference
- Full Case Name
- State v. H. C. Booker
- Cited By
- 1 case
- Status
- Published
- Syllabus
- 1. Supreme Court. Execution. Claimant’s issue. Replevin. Owners of personal property taken in execution issuing from the supreme court, under a judgment between other persons, should not interpose claimants’ issues, but bring actions of replevin against the officer executing the writ. 2. Same. Jurisdiction. Issues of fact. Want of original jurisdiction in matters of fact (Code 1880, ? 1412) prevents the supreme court from trying a claimant’s issue ; and, therefore, the statute (Code 1880, $ 2633), which prohibits actions of replevin in such cases, is not applicable if the officer holds under process of this court.