Eakle v. Smith

Bowie, C. J., delivered the opinion of this Court. A fieri facias, issued out of the Circuit Court of Washington county, as a Court of Equity, on the 29th of January, 1861, at the suit of the appellee, against Jacob and Amos Eakle, was returned on the 13th of March, 1863, on which day the appellants appeared and moved the Court to set aside the sale and quash the execution. At the same term, the appellee moved for leave to amend the writ. Orders to show cause were passed, and after testimony taken the Court below ordered the writ of fieri facias to be amended, and overruled the motions to set aside the sale and quash the writ, from which several orders this appeal is taken.

Many points of much interest in practice have been raised by the briefs, but one or two only are necessary to be considered, for the decision of the cause. - Whether judicial writs are amendable or not, is not one of these. The statute of Jeofails generally applies to proceedings at common law, and such as occur prior to the verdict or judgment. If the further execution of the writ was suspended by the operation of the appeal bond, it is immaterial whether the writ was regular or irregular. The execution having been issued on the 29th of January, .1861, and the judgment or decree rendered on the first Monday of July, 1860, all proceedings ³⁶¹ under the latter must he regulated by the Code.

The provisions of the Acts of 1826, ch. 200, and of the Act of 1840, ch. 232, are virtually condensed in Art. 5, sections 31 and 33, title appeals. There is no ambiguity in the meaning of those clauses, when read with due regard to their several subjects. The first refers to judgments, on which no execution has been issued ; in which case no stay or suspension of the right of execution occurs, unless cotemporaneously with the appeal, or “ immediately,” to use the language of the Code, " upon praying an appeal from any such judgment or decree, or suing out a writ of error” bond as therein prescribed, he entered into, and ax>proved. The next class is judgments on which any execution has been issued, " whether the same has been in part executed or not.” In this section, the 33rd, " the filing of an appeal bond approved as aforesaid, shall stay any execution which has been issued on any such judgment or decree.” Both presuppose the appeal to have been taken in due time.

The appeal per se, operates no supersedeas, whether execution he issued or