Humphreys, Newton & Co. v. Swain

21 Ill. App. 232, 1886 Ill. App. LEXIS 621

Opinion

Wall, J.

The Circuit Court declined to consider the testimony offered by appellants tending to show'that the execution was issued by the clerk before the judgment was actually entered up. It is contended by appellee that such proof is not competent because its effect is to ‘impeach a record which imports verity. It is conceded that an execution issued before the entry of judgment is void, may be questioned collaterally, and a subsequent entry will not validate it. Ling v. King, 91 Ill. 571; Cummins v. Holmes, 109 Ill. 15.

It was expressly held in Baker v. Barber, 16 Ill. App. 621, that parol evidence may be heard to prove that the execution was issued and in the hands of the Sheriff before the judg-| ment was in fact written up, although upon the same day, and that this does not contradict the record. We are disposed to adhere to this ruling.

The judgment of the Circuit Court will therefore be re- . versed and the cause remanded.

Reversed and remanded.