Conn v. Doyle

2 Ohio 318

• Court: Ohio Supreme Court
• Decided: December 15, 1826
• Status: Published

Opinion

By the Court :

This application is made to us, upon the ground that the writ of procedendo, from the general court, was the process upon which the sale was made, and that the Supreme Court of the state now represents that court.

By the judgment of affirmance, upon the writ of error, in the general court, the judgment of the common pleas, *and the proceedings under it, were placed in the situation in which they stood when the writs of error and supersedeas issued. The party was at liberty to sue out a new writ of venditioni, upon which the sheriff could proceed as he would have done upon the writ previously superseded in his hands. The procedendo, if it were well directed to the sheriff, which is certainly doubtful, conferred no power to sell. It only removed the prohibition interposed by the writ of supersedeas. The authority to sell was originally given by the process of the common pleas; it had been suspended, but was not taken away by the writs of error and supersedeas. The procedendo restored it, but did nothing more. If the sale was really made without other process than the procedendo, it was made without authority. As no other process issued from the general court, this court, now representing that one, can not make the order asked for. They have no jurisdiction of the subject,'and the application must be overruled.