Haskell v. Littlefield

• Decision Date: 07 January 1892
• Citation: 29 N.E. 626,155 Mass. 320
• Parties: HASKELL v. LITTLEFIELD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 320

29 N.E. 626

HASKELL v. LITTLEFIELD et al.

Supreme Judicial Court of Massachusetts, Essex.

January 7, 1892

COUNSEL

C. Lamson, for petitioner.

H.I Bartlett, for respondents.

OPINION

BARKER J.

Assuming that the judgment debtor's reversion after the expiration of the homestead estate might be taken on execution for his debt, before the expiration of the homestead estate, ( White v. Rice, 5 Allen, 73, 75; Smith v. Provin 4 Allen, 516, 517; Doyle v. Coburn, 6 Allen, 71; Gen.St. c. 103, § 31,) and that the levy was in conformity to the provisions of the statute, the petitioner derived no title under it, for the reason that his execution was void. His original judgment was obtained on October 16 1869, and was for the sum of $110.02 damages and $29.93 costs. Execution had issued on this judgment, and had been levied on real estate, and returned satisfied, and, after the levy had been adjudged void, the petitioner brought scire facias to obtain another execution. His writ of scire facias was sued out on August 2, 1873. In it he alleged that the judgment was altogether unsatisfied, and stated the date of recovery, and the amount of damages and costs of the original judgment as recorded, and that the amount then due upon it was $169.64, and prayed that he might have another execution for the amount of the judgment then due. The judgment debtor did not appear in answer to the writ of scire facias, and upon his default judgment was entered against him in these words: "Thereupon it is considered by the court alias execution issue as prayed for in said writ." Upon the entry of this judgment the execution under the levy of which the petitioner claims title was issued on October 25, 1873. This execution recites correctly the original judgment, and commands the payment of the amount of the original judgment, with interest thereon from October 19, 1869, with 50 cents for that and a former writ. Gen.St. c. 103, § 22, under which the writ of scire facias was brought, provided that another execution might be issued for the amount then due on the original judgment, without interest or further costs. The judgment upon the writ of scire facias, "that an alias execution issue as prayed for in said writ," must be construed in connection with the statute. If it could be construed otherwise, it could only be held to mean that the court adjudged that an alias execution should issue for the $169.64 which...