McWhorter v. Gam

16 Del. 252

• Court: Superior Court of Delaware
• Decided: May 15, 1896
• Status: Published

Opinion

Lore, C. J.,

delivered the opinion of the Court.

In the case at bar, judgment had been entered, execution issued and the levy made thereunder. At the time the judgment was opened for a hearing it was found that there was due on the judgment and unpaid $50.00; and the statute expressly provides that where an execution has been levied, as in this case, “ levy shall be a security for what shall be found due the plaintiff upon the judgment.” Rev. Code, p. 746. The judgment, therefore, is not vacated, but the amount due thereunder is ascertained.

If the judgment was vacated, the execution based upon it would fall, and with it the lien.of the party, when the act provides in such cases that “the judgment and execution shall stand, unless the defendant give security.” Ringgold vs. Griffin, 1 Harring. 224. The appeal is therefore dismissed.