Warder v. Millard
Warder v. Millard
Opinion of the Court
delivered the opinion of the court.
The plaintiff, Warder, moved for judgment against Millard, as sheriff, and the other defendants as sureties on his official bond, for an insufficient return of an execution. The court rendered judgment for a less sum than the plaintiff claimed, and he appealed in error.
" The execution was in favor of the plaintiff, and commanded the sheriff that, of the property of the defendants named therein, he cause to be made “the sum of five and thirty-four dollars and twenty cents,” a blank space being left in the body of the execution
“ Clerk. Theo. Harris. This alias, etc. .65
Judgment by confession July 8, 1874, for $534.20
(ivliich bears ten per cent, interest).
Credit by $325,00 February 10, 1875. All costs paid except this alias.
Issued 14lli of September, 1875.”
The sheriff made the following return: “ Came to hand same day issued, and returned to office nothing made for want of time to levy and sell. This No'vember 1, 1879.”
The court sustained the motion “as to the amount on the face of the execution, to-wit, the sum of thirty-nine dollars and twenty cents, with iuterest and damages thereon,” and rendered judgment accordingly.
It is conceded by the counsel ’ of the defendants, that the return [of the sheriff .is insufficient, as it clearly is: Code, sec. 3594, sub-sec. 2; McCrory v. Chaffin, 1 Swan, 308; Eakin v. Boyd, 5 Sneed, 206. They insist, however, that the execution was void for uncertainty, and because it did not pursue the judgment. The judgment does not appear in the bill of exceptions, and therefore, the last objection necessarily •fails. For aught that appears, the execution does follow the judgment, both in writing and in figures. That is to say, the judgment may have been for “the sum of five — and thirty-four dollars ánd twenty cents, $534.20,” in strict accord with the body of the execution and the endorsement. The Code expressly requires the clerk to endorse on the execution, when issued, the date and amount of the judgment: Code-
The Code provides that: “The Roman numerals and Arabic figures are to be taken as part of the English language, and are always sufficient to express dates and amounts, unless otherwise directed by law.” If the figures and the written amount called for by a moneyed obligation, record or writ, should differ, and could not be reconciled by the rules of interpretation applicable in such cases, the writing, if complete, would prevail. A discrepancy between the figures and the ■writing would not, therefore, necessarily render the instrument void for uncertainty. For either the writing would prevail, or the writing and the figures would be read together, and any defect in either corrected by the other. It would only be after all efforts to produce a harmonious result had failed, that a verdict of void for uncertainty would be rendered/
There is a discrepancy between the writing and the figures in the case before us. The writing is, however, obviously incomplete. There is a blank space
It is" also argued that the execution was void because the items in the bill of costs endorsed thereon were not set out in words at length, the only item specified consisting, it is said, of two items for different services. Before the adoption of the Code, such
The judgment must be reversed, and a judgment rendered here for the proper amount in accordance with this opinion.
Reference
- Full Case Name
- J. A. Warder v. W. A. Millard
- Status
- Published