Lyon v. Circuit Judge

1 McGrath 782, 66 McGrath 676

• Court: Michigan Supreme Court
• Decided: July 7, 1887
• Status: Published

Opinion

To vacate an order setting aside an execution returned as satisfied.

Granted July 7, 1887.

Held, that where a sheriff has made a set-off of executions under the statute and returned the larger one as satisfied, it is not competent for the Circuit Court on motion to set aside the return, and grant a second execution- on the judgment. The refusal of the circuit judge • to compel the sheriff to make á set-off of executions under How. Stat., Sec. 7709, is- not reviewable on mandamus. Wells vs. Circuit Judge, 39 M., 21 (482), but such refusal will not bar the right to proceed in equity for the same relief. Wells vs. Elsam, 40 M., 218. It is contrary to all right to finally determine legal claims on motion and affidavits. Parker vs. Circuit Judge, 24 M., 408 (759); Brown vs. Thompson, 29 M., 71.