Parmelee v. Hitchcock

12 Wend. 96

• Court: New York Supreme Court
• Decided: May 15, 1834
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

Whether the sheriff is bound to execute an erroneous writ delivered to him, depends upon the question whether it is absolutely void, or only voidable ; and whether void or voidable depends upon the fact whether it is amendable. There can be no doubt that a sheriff is justified in executing any process from a court of general jurisdiction which is regular upon its face. Where an execution is delivered to him, he is not bound to inquire whether there is a judgment to support it, or whether the execution corresponds exactly with the judgment; if it is regular upon its face, it is his duty to execute it; if there is any irregularity or error in it, that affects the parties, not the ministerial officer. 5 Wendell, 170. 8 id. 546, 7.

This court has amended executions when varying from the judgment and when tested out of term, and held the sheriff responsible for an escape when the defendant in the execution was committed upon such process, 6 John. R. 100, 1 Cowen, 309, declaring that such process was voidable, not void. Voidable process is so at the election of the party affected by it, not the officer. The error in the execution in question was amendable, and has been amended. It was the duty of the defendant to have executed the writ.

Judgment for plaintiff, with leave to the defendant to plead on payment of costs.