Nimmo v. Howard

The question presented is whether the judgment of the defendant Wasserman (a judgment of the court for the trial of small causes docketed in the court of common pleas) is entitled to priority over the complainant’s mortgage. The docketed judgment is prior in date to the mortgage, but it is attacked upon the ground that it is invalid because of the insufficiency of the return of the constable upon the execution issued out of the justice’s court. That return is as follows:

“ February 22d, 1872. I return the within, no property whereof to make the within or any part thereof.”

The justices’ court act (paragraph 72) requires, as a prerequisite to docketing, that the execution shall be returned endorsed to the effect that the constable could not find any personal property of the party against whom it was issued on which to levy, or that he has levied and sold goods and chattels and has made thereof part- of the judgment, and that the same was not fully satisfied, and stating the balance still unsatisfied. JRev. *488p. 552. The return in this case is to the effect that the constable could find no personal property of the defendant in execution on which to levy. In Poineer v. Bagnall, decided at the November term, 1886, of the court of errors and appeals (20 Vr. 226), the case of Matthews v. Miller, 18 Vr. 414, cited by the complainant's counsel, was disapproved, and a distinction was drawn between cases where, as in Tasto v. Klopping, 14. Vr. 448, and Freiehneeht v. Meyer, 12 Stew. Eq. 551, the return indicates that the constable found some unexempted goods whereon to levy and on which he made no levy, and cases where it appears that no goods were found. In that case the return was as follows:

“I return the within execution this 25th day of September, 1872, unsatisfied, no goods or chattels found within my county belonging to the defendant to make any part of the debt and costs of this execution, except that which is exempt by law.”

And the judgment docketed thereon was held valid. The judgment in question is entitled to priority over the complainant’s mortgage.