Neale v. Jeter

20 Ark. 98

• Court: Supreme Court of Arkansas
• Decided: January 15, 1859
• Status: Published

Opinion

Mr. Justice Compton

delivered the opinion of the Court.

Appellee interposed his plea in bar of the prosecution of the appeal in this case, alleging that he sued out a fieri facias on the judgment appealed from, which was levied on personal property oí appellant, who, for the purpose of retaining the possession thereof, entered into a delivery bond, with security, which was returned forfeited by the sheriff. The appellant moved to strike out the plea.

If it be true, as alleged in appellant’s motion to strike out, that the fieri facias was sued out, etc., after an appeal was regularly taken from the original judgment, and recognizance entered into for stay of process, still the fieri facias, though irregular, was not void, as decided by this Court in Dixon vs. Watkins et al., 4 Eng. 139; and, appellant not having táken steps in the Court below, as he might have done, for the quashal of the fieri facias, etc., the judgment on the forfeited bond which followed, must be regarded as valid, and extinguishes the original judgment, as has been repeatedly held by this Court. Rector vs. Harris, Norton & Co., 19 Ark. 285; Phillips and others vs. Wills, Pease Co., 14 Ark. 595; Daugherty vs. McDonald, Ib. 597.

The motion to strike out will therefore be overruled.