Henkle v. German

6 Blackf. 423

• Court: Indiana Supreme Court
• Decided: May 15, 1843
• Status: Published

Opinion

Blackford, J.

This was a soire facias to show cause why execution should not issue against real estate, on the transcript of a judgment of a justice of the peace. Plea, that no execution had issued on the judgment in the soire facias mentioned in manner and form as therein alleged. ‘ The cause was'submitted to the Court, and judgment rendered for the defendant.

The plaintiff gave in evidence the transcript of the judg‘ment, &c., described in the scire facias, and a certificate of the justice “that an execution had issued in the cause, and been returned no goods or chattels found on which to levy.” The transcript of the judgment, &c., after setting out the recovery of the judgment in the cause, proceeds as follows: “Execution issued August 2d, 1841, but no goods and chattels found-on which to levy.” And then follows the justice’s certificate that the transcript is correct. There was no other evidence in the cause than that which we have stated.

\Vb think the judgment for the defendant is correct. The transcript of the entries on the justice’s docket did not show that a legal execution on the judgment had issued against the' debtor’s goods, and been returned nulla bona. To prove that such an execution had issued and been so returned, the plain-' tiff should have produced the original execution and return, or copies of them certified by the justice, or sworn copies. This is the kind of evidence of the execution and return alleged in a scire facias against replevin bail, which the plaintiff is required to produce; Snyder v. Norris, Nov. term, 1841; and the rule must be the same in the case before us.

A. Ingram, for the plaintiff. I). Mace, for the defendant.

Per Curiam.—The judgment is affirmed with costs.