Long v. Morton

• Decision Date: 18 October 1819
• Parties: John Long v. Wm. Morton et al.
• Court: Kentucky Court of Appeals

9 Ky. 39

John Long v. Wm. Morton et al.

Court of Appeals of Kentucky.

October 18, 1819

ON AN APPEAL FROM A JUDGMENT OF THE GENERAL COURT.

Wickliffe for appellant

Talbot for appellee.

OPINION

CHIEF JUSTICE ^[a1]

This is an appeal from a judgment of the general court, quashing a writ of habere facias possessionem, which had issued on a decree obtained by the appellant against Sarah Mitchel and awarding restitution to the appellees, who had been turned out of possession by the sheriff, in virtue of the said writ.

When a judgment or decree is suspended in its operation till a further day an execution properly issues at any time within a year and a day, after the suspension expires, without a scire facias, though more than that time elapses between the day of the judgment and the execution.

The motion to quash, and for restitution, was made on the following grounds:

1. That the writ of possession was issued irregularly, the decree on which the same purports to have been issued, having been pronounced more than a year prior to the suing out that or any other writ of possession on said decree. 2. That the said writ unwarrantably issued without a scire facias having been previously issued against, and served on, the tenants on the premises. And 3d, That the said writ was illegally proceeded on, and executed by, the sheriff; he having made use of unauthorized and illegal violence on the goods and chattels of the tenants on the premises.

Neither of these grounds, we apprehend, can be sustained. The first is clearly untenable. The decree was pronounced against Mrs Mitchel, in January, 1816, for the tract of land in question but in the decree her right of dower was reserved, and it was further provided, that if she should, on or before the first of December ensuing, have her dower allotted and set apart she should then only surrender to the appellant so much of the tract as should not be allotted to her. At the January term, 1817, an order was made, awarding a writ of habere facias possessionem to the appellant, and the writ was accordingly isued in February, 1817. From this state of the case, it is evident, that until after the first of December next, subsequent to pronouncing the decree, a writ of habere facias possessionem, could not have issued on the decree; for, as Mrs. Mitchel was allowed until that time to have her dower allotted to her, the part of the tract to which the appellant...