Merritt v. Wing

4 How. Pr. 14

• Court: New York Supreme Court
• Decided: February 15, 1849
• Status: Published

Opinion

Paige, Justice.

Tins suit was commenced before the Code of Procedure took effect. By the act of 14th May, 1840, (sec. 24,) an execution could not be issued until after the expiration of thirty days from the entry of the judgment. The 54th section of the Judiciary Act (May 12, 1847,) did not repeal tins section of the act of 1840. The 8th section of the code expressly confines its provisions to civil actions, commenced after the time when the code was to take effect. And the supplement to the code does not make the 238th section of the code in relation to executions and the time of issuing the same, applicable to suits pending when the code went into operation. This statement shows that in aE suits pending when the code took effect, the time of issuing executions must be governed by the laws then in force. This being the case, the execution in this suit having been issued before the expiration of thirty days from the entry of the judgment, was irregular. But as to the defendants, R G. Wheeler and Roger D. Wing, the irregularity was waived by the consent of Wheeler that the execution should be issued, and by the consent of Wing, to the sheriff’s levy on his personal property. (Kimball v. Hunger, 2 Hill, 364; 1 Howard’s Sp. Term Rep. 71; 2 Hill, 378, Anon.) There has been as yet no attempt to enforce the execution against the defendant T. B. Wheeler. When such attempt is made, he wiE be at Eberty to apply to have the execution set aside as to him. The motion must be denied, but without costs.