Bosworth v. Clark

Jackson, Justice.

1. It is not necessary to consider the various objections to *288 the execution in the view we take of the claimant’s motion. Her motion was to quash the fi. fa. The motion should have been to exclude it as evidence when it was tendered as such, or to dismiss the levy. In a claim case, the only concern that the claimant has with the execution is to see that it does not touch his property; that it does not proceed illegally against it. Defendant in execution is not a party,, and he might be willing for the fi. fa. to stand against him,, or to be amended, or an alias to issue at once. lie could move to quash on any legal ground, but not the claimant. His motion ought to be to withhold the fi. fa., or reject it as evidence, or to dismiss the levy. The court was right to refuse the motion to quash the fi. fa. at the instance of the claimant.

2. Nor do we think that the court erred in permitting the plaintiff in execution to prove the contents of the deed. The prima facie case of its loss was made out when he showed that he had notified the claimant to produce it, and had served the defendant in execution with a subpoena duces tecum to have it in court. This showed diligence on his part to get the deed, and we will not control the judge’s discretion in pronouncing it sufficient to admit the contents of the paper.

When the claimant made a counter showing, or attempted to do so, by producing other deeds which showed that the defendant had sold and conveyed, and his grantee also had sold and conveyed, so that the proper custodian of the deed was not served with a subpoena duces tecum, the presiding judge did not err in ruling that those deeds, thus tendered and exhibited to him — -he trying the case as judge and jury both — could be and should be considered evidence in the case for all purposes.

3. A motion was made to dismiss the bill of exceptions on the ground that the evidence .was not embodied in the bill of exceptions, the execution which was levied and essential to condemn the property being left out, and *289 coming up in the record only as part thereof. Ye think that the execution is evidence, and must be put in evidence, and such has ever been the practice so far as I remember; but still it is also a paper which the sheriff must return to court with the affidavit and claim bond .(Code, §3736); and therefore it may well be considered a part of the record,in the case, and may come up to this court as part of the record, and need not also appear in the bill of exceptions, although no motion was made for a new trial, but the case comes up solely on exceptions. Ye decline to dismiss this bill of exceptions for this reason, but we affirm the judgment for the reasons previously stated.

Judgment affirmed.