Peterson v. Carpenter

• Decision Date: 11 March 1896
• Citation: 66 N.W. 487,108 Mich. 608
• Court: Michigan Supreme Court
• Parties: PETERSON v. CARPENTER, CIRCUIT JUDGE.

66 N.W. 487

108 Mich. 608

PETERSON v. CARPENTER, CIRCUIT JUDGE.

Supreme Court of Michigan

March 11, 1896

Application on the relation of Henry M. Peterson against William L Carpenter, Wayne circuit judge, for writ of mandamus to compel defendant to discharge a levy under execution on real property. Denied.

James H. Pound, for relator.

T. T Leete, Jr., for respondent.

MOORE J.

May 27 1895, Herbert J. Dawson and others obtained a verdict against relator, upon which judgment was rendered June 18, of the same year, and on the same day an order was entered staying all proceedings for 20 days. July 8th an execution was issued, and by the clerk delivered to the attorney for the plaintiffs, who delivered the execution to the sheriff July 9, 1895. On the same day the sheriff levied upon real estate, and afterwards proceeded to advertise said property for sale, which sale was to be August 31, 1895. August 26, 1895,-a month and a half after the stay of execution had expired,-a writ of error was issued, and a bond filed by the relator, in accordance with the statute. The sheriff was advised that his authority to make the sale was questioned. No further proceedings were taken by him towards making a sale. The proceedings up to this time involved costs and expenses which were borne by plaintiffs. Application was then made to the respondent to cause the levy to be set aside. The circuit judge issued an order to said sheriff to show cause why said levy should not be released. In answer to said order, the foregoing facts were made to appear. The circuit judge was of the opinion that the circuit court had not power to cause said levy to be discharged; that the writ of error and bond operated as a stay, but was not retrospective, and did not operate on the execution and levy anterior to its allowance, and declined to direct the levy to be recalled. The relator then asked for the writ of mandamus to have the questions involved in the proceeding passed upon here.

The first question which arises is, was an execution issued July 8th, upon a judgment issued June 18th, which execution was placed in the hands of the sheriff July 9th, of any force or effect? When it was issued by the clerk, only 19 days had elapsed after judgment. When it was placed in the hands of the sheriff, 20 days had elapsed after judgment. In Bank v. Dwight, 83 Mich. 191, 47 N.W. 111, it is held that an execution "cannot be considered as issued until it is placed where it might have been executed, and some efficient act done under it. It must be issued to the sheriff, or other proper officer. How. Ann. St. � 7664. The officer is the only one who can do such efficient act. The attorney who takes out the writ can do nothing under it." We think the execution, when delivered to the sheriff, was a valid writ.

The other question in this case is whether the filing of a bond and the issuing of a writ of error after the stay of proceedings authorized by the statute has expired will discharge a levy made upon real estate under an execution issued after the stay of execution has expired, and before the bond was filed and the writ of error issued. It is claimed by the relator that it does have that effect. Where the levy made was upon personal property, it has been held that the filing of the bond...