Chesebro v. Barme
| Decision Date | 26 February 1895 |
| Citation | 163 Mass. 79,39 N.E. 1033 |
| Parties | CHESEBRO v. BARME et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles F. Jenny and Edwin C. Jenny, for plaintiff.
Robert H.O. Schulzt and C.P. Sullivan, for defendants.
The first execution against the debtor was issued on July 2 1892, and was returned into court unsatisfied on August 26 1892, when an alias was issued, upon which the debtor was arrested on September 2, 1892. The defendants contend that the alias was void, because issued before the return day of the original execution. By our statute (Pub.St. c. 171, § 22) an execution must be made returnable in 60 days from its date. This is not equivalent to saying that an execution can be returned to court only upon its statute return day. The purpose of the enactment is to make a reasonable limit of time beyond which the process shall not authorize the commencement of proceedings for the collection of the judgment. But service begun before the return day may be completed thereafter. Id. § 55. The officer's return of service upon the execution and the return of the execution into court are different matters. He may indorse upon the execution any true statement of his acts under it without waiting for the return day, or after that day; and there is no prohibition against returning the execution into court before or after the return day. If it is returned into court before the return day, bail taken in the action cannot be held, nor can a trustee charged in the action be held upon scire facias. Niles v. Field, 2 Metc. (Mass.) 327; Bull v. Clarke, Id. 587; Rowland v. Seymour, Id. 590; Adams v. Cummiskey, 4 Cush. 420. But this is because bail may surrender their principal at any time before the return day, and the death of the principal during that period discharges the bail; and, in the case of a trustee, because the execution may be satisfied otherwise than by the goods or property for which the trustee was charged. There are instances in which arrests and levies made upon executions prematurely issued have been held void, but in those instances, not only were the executions prematurely issued, but the arrest or the levy was made before the time when an execution could be legally issued. In Briggs v. Wardwell, 10 Mass. 356, a justice of the peace, who had issued an execution in two or three hours after he had rendered judgment, was held liable in trespass for the arrest of the defendant; but from the statement that he was arrested "a few hours earlier than by law he should have been" it is apparent that the arrest was made before execution could have been lawfully issued. So in Penniman v. Cole, 8 Metc. (Mass.) 496, where the execution issued before the lapse of the prescribed 24 hours after the entry of judgment, the levy which was held void was also made before the expiration of the same 24 hours. There is good authority that executions prematurely issued, if not acted upon until after the time when an execution might legally be issued, are not void, and that proceedings under them are valid. Blaine v. The Charles Carter, 4 Cranch, 328; Stewart v. Stocker, 13 Serg. & R. 199; Scribner v. Whitcher, 6 N.H. 63. And in Rammel v. Watson, 31 N.J.Law, 281, and in Lovegrove v. Brown, 60 Me. 592, the original execution was returned, and an alias issued before the return day of the original, and was held not to be void There may, no doubt, be executions which, although prepared and signed by the clerk, and under the seal of the court, are void; as in Albee v. Ward, 8 Mass. 79, where an execution issued by a justice of the peace upon a recognizance misrecited the recognizance both as to the sum and as to the time when it was entered into. So in Hammatt v. Wyman, 9 Mass. 138, where the execution was discharged by the full satisfaction of the judgment by one judgment debtor, although no entry of satisfaction was made. So in King v. Goodwin, 16 Mass. 63, and in Kennedy v. Duncklee, 1 Gray, 65, where, when the execution issued, there had been a taking of the body of the judgment debtor upon a previous execution on the same judgment. Or in Winslow v. Hathaway, 1 Pick. 211, where an execution not intended to be dlivered was improperly given out by some employé of the clerk's office, and was served, notwithstanding that the judge who held the court wrote, when applied to, that the execution must not be served. So in Palmer v. Crosby, 11 Gray, 46, where the execution purported on its face to be upon a judgment entered by a tribunal which had no existence. But the general principle is that, when the judgment is recovered in a court having jurisdiction, and the execution is issued by the proper officer, irregularities either in the mode of issuing it or in the document itself do not make it void, and that it may be dealt with by the court upon motion of either party, and amended or annulled, as justice may require, and that service of it, if it is not annulled, or service restrained or suspended, is not invalid. Johnson v. Harvey, 4 Mass. 483; Runlet v. Warren, 7 Mass. 477; Blanchard v. Waters, 10 Metc. (Mass.) 185; Kennedy v. Duncklee, 1 Gray, 65; Nims v. Spurr, 138 Mass. 209; Blaine v. The Charles Carter, ubi supra; Scribner v. Whitcher, 6 N.H. 63, and cases cited; Bryant v. Johnson, 24 Me. 304; Stewart v. Stocker, ubi supra; Lowber & Wilmer's Appeal, 8 Watts & S. 387; Rammel v. Watson, ubi supra; Morgan v. Evans, 72 Ill. 586. So an officer who holds an execution in common form, issued by a court having jurisdiction, is protected by it in making the service which it orders him to make. Smith v. Bowker, 1 Mass. 76; Wilmarth v. Burt, 7 Metc. (Mass.) 257. If, in the present case, we should assume that the issuing, before the return day of the original execution, of the alias on which the debtor was arrested, was irregular, and that until after the return day of the original the alias would have been superseded upon the debtor's motion, or even that the alias was void until the return day of the original had passed, there still would be no reason for holding that the alias was void after the return day of the original. No one had been injured by the irregularity, if the course pursued was irregular. The debtor was not arrested until after the return day of the original execution. Even the small fee for the alias must have been added to the costs, if the original had been returned to court on its return day, and the alias then issued instead of before; and we need not consider what would be the effect of swelling costs by numerous returns and fresh writs. In our opinion, the alias upon which the debtor was arrested was valid at the time of his arrest.
The points raised by the defendants as to the effect of the fourth and fifteenth articles of the amendments of the constitution of the United States are not properly before us. They now contend that the debtor's arrest was illegal because there was no affidavit or affirmation in support of the arrest, and that, because another course is prescribed for dealing with women judgment debtors than with men, men are thus deprived of the equal protection of the laws. But these points were not raised at the trial in the superior court, are...
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