Marvin v. Herrick

5 Wend. 109

Opinion

By the Court,

Savage, Ch. J.

By lire provisions of the revised statutes no judgment is valid so as to authorize any proceedings thereon until the record thereof is filed. 2 R, S. 360, § 11. It is objected that the issuing of the execution before the filing of the record is a mere irregularity, and that no one but the defendant in the execution can avail himself thereof; 8 Johns. R. 365; 1 Wendell, 31; but the issuing of the execution in the second above entitled cause previous to the filing of the record, was nota mere irregularity ; the execution itself was void, or a mere nullity, until the record was filed. Allowing it to become operative when the record was filed, the execution in the other cause had obtained the preference, it being delivered to the officer at. eleven A. M. and the other not becoming’ operative until near three, P. M. The motion is granted.