Bigham v. Dover

110 S.W. 217, 86 Ark. 323, 1908 Ark. LEXIS 374

• Court: Supreme Court of Arkansas
• Decided: May 25, 1908
• Status: Published

Opinion

Wood, J.,

(after stating the facts.) Our statute provides that: “An execution may issue upon any final judgment, order or decree of a court of record for a liquidated sum of money, and for interest artd costs, or for costs alone.” Section 3203, Kirby’s Digest.

There is no law or rule of practice that authorizes a single execution for the amounts of two separate and distinct judgments. 17 Cyc. 932. A joint execution upon two separate judgments is not voidable merely, but void. Merchie v. Gaines, 5 B. Monroe (Ky.), 126; Doe v. Rue, 4 Blackf. Ind. 263. Such an execution is defective, not in form merely, but also in substance, and is therefore not susceptible of amendment. See Blanks v. Rector, 24 Ark. 496; Hightower v. Handlin, 27 Ark. 20; Hall v. Doyle, 35 Ark. 445; Jett v. Shinn, 47 Ark. 373; and Downs v. Dennis, 83 Ark. 71, as to executions that may or may not be amended. An execution based on a valid judgment, but which contains an excessive amount only, may, according to some decisions, be amended. Hunt v. Loucks, 38 Cal. 372; Bogle v. Bloom, 36 Kan. 512; Otis v. Nash, 26 Wash. 39. But this is not that case. The ruling of the court eliminating the amount of one of the judgments did not cure the error of taking and selling appellant’s property under process that was absolutely void. Such error was prejudicial, and could not be cured by amendment. Appellee acquired no title by his purchase at a sale under the void execution.

The judgment is therefore reversed, and the cause is remanded for new trial.

Hiel, C. J., and McCurroch, J., dissent.