Stephenson v. Newcomb

Superior Court of Delaware

Stephenson v. Newcomb

5 Del. 150

DecidedJuly 5, 1849

StatusPublished

This text of 5 Del. 150 (Stephenson v. Newcomb) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stephenson v. Newcomb, 5 Del. 150 (Del. Ct. App. 1849).

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Opinion

*151 The Court.

We cannot inquire into the regularity of this judgment. It is the judgment of a competent tribunal coming collaterally in question, and is conclusive. If we can enter into these questions of irregularity in respect to Rodney’s judgment, we may also re-try those under which the defendant claims the proceeds of the goods attached or sold on execution, and thus run this case into inextricable confusion.

We do not point out a remedy. If there be none, it is a defect which the legislature onght to cure; but whilst the judgment stands unreversed, we must take it to be a valid judgment. If there be an exception, it is because of fraud in obtaining a judgment..

Mr. Layton afterwards made the point that there was not such a privity as would enable Constable jNewcome to sue Constable Stephenson. [4 Harr. Rep. 178. 468, overruling Ross vs. Jacobs, 2 Harr. Rep. 445.] In this case the Court of Appeals decided that the judgment or execution creditor can sue the constable selling, or receiving the money; it follows that the other constable cannot have this right of action, for both cannot have it.

Mr. Cullen.—Assumpsit will lie by one constable against another, for goods sold by the latter, when the former is entitled to the proceeds. [2 Harr. Rep. 445; 3 Ib. 446; 4 Ib. 178, 468; 12 Johns. Rep. 227; 7 Johns. Rep. 470; 9 Johns. Rep. 96; 1 Wend. Rep. 534; Chitty Const. 461-2; 7 Law. Lib. 146.]

The plaintiff had a verdict under the charge of the court.

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*151 The Court.

We cannot inquire into the regularity of this judgment. It is the judgment of a competent tribunal coming collaterally in question, and is conclusive. If we can enter into these questions of irregularity in respect to Rodney’s judgment, we may also re-try those under which the defendant claims the proceeds of the goods attached or sold on execution, and thus run this case into inextricable confusion.

We do not point out a remedy. If there be none, it is a defect which the legislature onght to cure; but whilst the judgment stands unreversed, we must take it to be a valid judgment. If there be an exception, it is because of fraud in obtaining a judgment..

Mr. Layton afterwards made the point that there was not such a privity as would enable Constable jNewcome to sue Constable Stephenson. [4 Harr. Rep. 178. 468, overruling Ross vs. Jacobs, 2 Harr. Rep. 445.] In this case the Court of Appeals decided that the judgment or execution creditor can sue the constable selling, or receiving the money; it follows that the other constable cannot have this right of action, for both cannot have it.

Mr. Cullen.—Assumpsit will lie by one constable against another, for goods sold by the latter, when the former is entitled to the proceeds. [2 Harr. Rep. 445; 3 Ib. 446; 4 Ib. 178, 468; 12 Johns. Rep. 227; 7 Johns. Rep. 470; 9 Johns. Rep. 96; 1 Wend. Rep. 534; Chitty Const. 461-2; 7 Law. Lib. 146.]

The plaintiff had a verdict under the charge of the court.

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Bluebook (online)

5 Del. 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephenson-v-newcomb-delsuperct-1849.

Opinion

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