People v. Judges of New-York Commom Pleas

1 Wend. 81

Opinion

By the Court,

Sutherland, J.

The relators had four days, after the perfecting of the judgment, to sue out their writ of error, and to put in and perfect bail; and having complied with the rule, they are entitled to be protected from the enforcement of the judgment obtained against them, until the determination of the suit in error. A party may sue out execution within the four days, but it is at the peril of a supersedeas of execution and restitution of property, if error is brought and bail perfected within that time. There may have been some doubt, heretofore, as to the practice in a case like this, growing out of the notion, which has long prevailed in England, that an execution, being an entire thing, cannot be divided; and that when a levy is made under a fi.fa., the sheriff shall not be stayed, but shall proceed and sell the goods. But since the decision of this court in Jackson, ex dem. Bogert, v. Schauber, (7 Cowen's R. 417 and 490,) it was supposed that the practice of this court would be considered as settled. The motion for a mandamus is granted.

(a)

The decision in this case overruling the decision in 9 Johns. R. 66, it may not be amiss to review the cases on this subject. The case of Blanchard v. Myers, in 9 Johns. R. fairly presented the question : whether a certiorari, sued out within the time allowed by law, should operate as a supersedeas to a fi.fa. on which a levy had been made, previous to the issuing of the certiorari ; and the court, on the authority of Meriton v. Stevens, (Willes’ R. 271,) hold that the execution, having begun to be executed before the suing out of the certiorari, the certiorari tvas not a supersedeas, and that the officer had a right to proceed and complete the execution. In Willes’ R. 271 to 282, Chief Justice Wittes reviews all the cases upon this subject from the earliest periods, and comes to the conclusion, that if a levy is made ori an execution, before the suing out of a writ of error, the sheriff must proceed to the sale of the goods, and bring the money into court, to abide the event of the -writ of error ; in which conclusion he was supported by the whole court, except Mr. J. Forteseue. It is, however, well worth observation, that in page 280, the Ch. J. expresses his doubts as to the reasonableness of the rule, when applied to a ca. sa. instead of afi. fa. “ If it were a capias, (he observes,) that being a complete execution, it has been holden that a writ of error comes too late afterwards, for that the judgment is completely executed, and therefore the party shall remain in prison, notwithstanding the writ of error. But, quere, how far this is reasonable, since the statutes 3 Jac. 1, ch. 8, and 16 <§• 17 Car. 2, ch. 8, in such cases, where bail is actually put in to answer the'debt, or damages and costs, pursuant to the directions of those statutes.” In Lane fy others v. Bacchus, (2 T. R. 45,) Jlshhurst, J. expresses the opinion, that the injustice of permitting an execution to be perfected, after a writ of error duly sued out and bail put in, would not be permitted. “ The party taking out execution (ho says) after the allowance of a writ of error, and before bail put in, does it at his peril; for if the writ of error be regularly followed up with bail, the execution will be set aside. The execution in that case was not sot aside, because bail had not been put in ; but it is evident, had bail been put in, and perfected within the four days allowed for that purpose, the execution would have been set aside. The rule laid down by Jlshhurst, J. is declared to be the practice of this court, in Brisban & Brannan v. Caines, (11 Johns. R. 197.) The case of KinnicJc v. Whitford, (17 Johns. R. 34,) has been supposed to support the decision in 9 Johns. R. 66, because there the court say, that writ of error is no supersedeas to an execution issued and actually levied ; but by examining that case, it will be perceived that the execution was not issued and levied until eleven days after the judgment was perfected, and that the writ of error was not sued out until after that time. So that case has no bearing upon this question. In Blunt v. Greemoood, (1 Cowen, 21,) the court advert to the doctrine that a writ of error does not operate as a supersedeas to a fieri facias begun to be executed ; but it will be observed in this case, there was no valid writ of error sued out within the four days, the paper purporting 'to be a writ of error being declared a nullity, and of course it could be no supersedeas to the execution. Here, the court for the first time distinctly lay down the practice in these cases. “ The defendant has four clear juridical days after final judgment, for bringing a writ of error. The plaintiff may, in the mean time, issue execution at his peril, which is subject to be superseded by filing a writ of error and putting in bail.” This is followed up by Jackson v. Eden, (7 Cowen, 412,) where the court say, the party who0 prevails on a bill of exceptions, may take the effect of our decision as soon as he pleases, subject to be arrested by writ of error and bail within the four days.” In Jackson v. Schauber, (7 Cowen, 417,) the court confirm this rule : “ The plaintiff had a right within four days after judgment perfected, to take out execution, and levy or execute the writ of possession; but it was upon peril of error being brought and bail given within that time, which operates as a supersedeas, and restitution will follow if necessary.” And in 7 Cowen, 491, where the case of Jackson and Schauber again came under consideration, the court explicitly determine that an execution will be set aside, though issued and a levy made under it previous to the suing out or filing of the writ of error, if the writ of error be sued out and bail put in within the four days, or within the time enlarged by a judge’s order.