Davis v. Dietz

2 Ind. 247

• Court: Indiana Supreme Court
• Decided: October 28, 1850
• Status: Published

Opinion

Blackford, J.

Dietz sued out a scire facias to have execution on a justice’s transcript. There was a judgment in favor of the plaintiff awarding execution.

The scire facias, which was directed to the sheriff of Clark county, is substantially as follows:

Whereas, heretofore, &c., before Alexander Marrs, a justice, &c., the plaintiff recovered judgment against the defendant for 19 dollars, as appears by the justice’s transcript filed in the clerk’s office, which transcript shows that a fieri facias, issued on said judgment, had been returned nulla bona; and execution thereof still remains to be made. The said judgment is still in force; and the plaintiff suggests, as certified by the justice, that the defendant has lands in said county; you are, therefore, commanded to make known to the defendant, &c.

The defendant pleaded as follows: That, at the time of the issuing said scire facias, the said transcript had not been recorded in the Circuit Court.

Afterwards, at the same term at which said plea was filed, the plaintiff appeared; and the defendant, upon being called, made default. The Court, therefore, awarded execution as prayed for in the scire facias.

The defendant makes two objections to these proceedings:

1. That the scire facias is defective for not showing that the justice’s transcript had been recorded in the Circuit Court;

2. That the plea shows good cause against the award of execution.

The first objection is unténable. As an execution had issued and been returned nulla bona before the filing of the transcript in the Circuit Court, it was not necessary, under the act of 1838, which governs this case, to have the transcript recorded. R. S. 1838, p. 375. Hamilton v. Matlock, 5 Blackf. 421.

A. C. Griffith and H. P. Thornton, for the plaintiff.

This answer to the first objection, is an answer also to the second. If it was not necessary to record the transcript, its not being recorded could, of course, be no objection to the award of execution.

Per Curiam.

The judgment is affirmed with 5 per cent. damages and costs.