Ewing v. Hatfield

17 Ind. 513, 1861 Ind. LEXIS 508

• Court: Indiana Supreme Court
• Decided: December 14, 1861
• Status: Published

Opinion

Per Curiam.

Comstoch and others had a mortgage upon property of Ewing. A foreclosure was had upon this mortgage, and judgment for the sale of the specific property. At the proper time, a certified copy of the judgment issued to the sheriff.

There was a clerical error in the title of the foreclosure suit; but the title is but matter of form Perk. Prac. 165.

No formal levy of a certified copy of a judgment of sale in a foreclosure suit is necessary, because the judgment itself designates the particular property to be sold, and no other could be levied on under the copy of the judgment, at least till that designated had been sold, nor without a provision in the judgment authorizing it.

An offer to sell would be a commencement of the execution of the judgment; and where execution has been commenced before, it may be completed after, the return day, (Tillotson v. Doe, 5 Blackf. 590,); and the officer who had commenced the execution might, at common law, complete it,, even after going out of office, (3 B. Monroe, 304,) and after the death of the defendant. 7 Blackf. 154; id. 549.

Olías. II. Mason, for the appellant. Ballard Smith, for the appellees.

The issuing of a subsequent void writ> while the original valid one was still in the hands of the officer, would not vitiate action under the original.

On questions of fact, turning upon the evidence, this Court rarely disturbs the judgment below.

As to the necessity of moving to set aside executions and sales for irregularities, see Doe v. Dutton, 2 Ind. 309.

The judgment is affirmed, with costs.