Commonwealth v. Magee

The authority which a judge exercises at his chambers over process of the court in a case pending, is that of the court itself, and may bo enforced by attachment. A judge, in vacation, has power to stay an execution, and his order is binding upon the officer to whom it is addressed. Upon an application to a judge in vacation, to obtain a stay of execution, the proper mode of proceeding is by summons in the nature of a rule nisi, fixing a day for hearing, which should be served on the opposite party; and without this be done, the judge ought not to interpose his power: unless the order applied for, is a matter of course. Notice of an order to stay execution must be served on the party to be affected by it; otherwise he may disregard it: but it seems that where an order to stay execution may be made without summons, notice is not necessary; and that the omission to give it is not fatal to the validity of the proceeding, ab initio, in any case. The omission or neglect to give notice of an order to stay execution, however indispensable it maybe to correct practice to give it, is but an irregularity which upon application would furnish sufficient grounds to rescind the order, but would not justify the officer’s refusal to obey it. It is no part of a sheriff’s duty to notify the plaintiff in an execution of the receipt of a judge’s order to stay the same. A sheriff cannot be impeached for misfeasance by the plaintiff, for not executing a writ of fi. fa., which had been stayed by the order of a judge. The omission by the sheriff to return an execution until after the return day, is not of itself such negligence as will make him liable to an action.

In error from the Common Pleas of Perry county. June 1. This was an action of debt, brought in the name of the commonwealth for the use of L. G-. Brandebury and G. Klink, on the official bond of Alexander Magee, late sheriff of Perry county, and his sureties, to recover the amount of a writ of fieri facias, placed in his hands for collection. The plaintiffs, for whose use this siiit was brought, obtained an amicable judgment on the 4th of January, 1844, against Conrad Ernest, No. 114, January Term, for 1844, for $100, without stay of execution. . On the 9th April, 1844, a writ of fieri facias issued on this judgment, No. 3, August Term, 1844, and was placed on that day in the hands of the sheriff for collection. At the time the execution came into the hands of the sheriff, and for a long time afterward, the proof was, that the defendant had sufficient personal estate to pay and satisfy the amount of the execution. The sheriff retained the execution in his possession, without executing it, until the 28th November, 1844; at which time he returned it, “ stayed by order of court; so answers Alexander Magee, rsheriff.” The August and November terms intervened between the issuing and return of the writ. On the 5th August, 1844, a judgment was entered in favour of John Ernest (the son) against Conrad Ernest (the father), No. 304, April Term, 1844, for $590.83. On the 7th August, 1844, a, fieri facias, issued on this judgment, No. 1, November Term, 1844, and was placed in the sheriff’s hands; to which the following return was made: “August 16, 1844, levied on defendant’s personal property, and sold the same, 4th October, 1844, for $412.17; proceeds of sale applied as per statement (read in evidence), and $392.78 applied to debt and interest on this judgment.” Defendant had not any property left, having become insolvent. The defendants then offered the following paper in evidence: — ■ “ Brandebury and Power, v. Conrad Ernest. Judge Junkin is requested to stay proceedings upon an execution in this case till next term, to allow the defendant to move the court to' open the judgment and set aside the execution, “ Conrad Ernest, being duly sworn, says that the note on which this judgment is entered, was given to the plaintiff for services to, be rendered after the date of the note as attorneys for him, and that the services have not been rendered according to the contract of the parties, and that consequently the money, is not due, and the execution has been issued improperly and should be stayed. “ Sworn and subscribed before me, the 4th day of May, 1844. John Junkin. “ May 4th, 1844, in the a*bove case proceedings stayed until the 2d day of the August Term ensuing this date. John Junkin.” Neither the above application nor affidavit were signed by Conrad Ernest, nor by any one else for him. On the back of the paper was endorsed, in the handwriting of the person who drew the petition and affidavit, the following:— “ Judge Junkin will please give Conrad Ernest an order to the sheriff to stay proceedings till the next court.-” The foregoing offer was objected to by the plaintiffs. 1st. Because the sheriff returned the fi. fa. stayed by order of court, and no proof can be given to contradict it. 2d. Because the proceedings were ex parte, without notice, and were coram non judice. The objections were overruled, exception taken, and bill sealed. The defendants then proved that this paper was delivered the same day to Sheriff Magee, and found among his papers after his death: the writ having been returned by the sheriff in his lifetime. The plaintiffs- requested the court to charge the jury on the following points:— 1st. That it was the duty of the sheriff, upon receiving the writ of fieri facias, No. 3, August Term, 1844, against Conrad Ernest, to levy the debt, interest, and costs of the defendant’s goods and chattels, if he had a sufficient amount liable to levy and sale; and if he neglected or refused to do so, whereby the plaintiffs lost their claim, he made himself liable for the amount of the writ in his hands, and plaintiffs are entitled to recover in this action. 2d. That if upon the delivery of the fieri facias to the sheriff, he had a reasonable doubt of the plaintiffs’ right to issue the same, or of his duty to execute the writ; or of the title of defendant in the execution, to the goods to be levied on, it was his duty to make a levy, and to inform the plaintiffs and ask for an indemnity; and, if he neglected to do so, but undertook to determine those questions for himself, and neglected and refused to levy and sell the defendant’s goods, whereby the plaintiffs lost their debt, he made himself liable for the plaintiffs’ claim, and they are entitled to recover in this action. 3d. That if upon tbe application of Conrad Ernest, tbe defendant, in the execution to Judge Junkin in vacation, he peremptorily directed further proceedings on the execution in the sheriff’s hands to be stayed without a rule to show cause or any notice to the plaintiffs, and without making provision for the continuance of the lien on defendants’ personal property, or taking sufficient security to indemnify the plaintiffs, his proceedings were coram non judies, and afford the defendants no protection in this action. 4th. That if Judge Junkin did direct the sheriff on the 4th of May, 1844, to suspend further action on the execution, without any notice to the plaintiffs, and no further proceedings were had upon the order of the judge, and the sheriff held the writ in his hands from that time until the 28th of November following, without giving ' the plaintiffs any notice, and during that time he received other executions, upon which he levied and sold the property of Conrad Ernest, and paid away the proceeds, whereby plaintiffs lost their claim, he made himself liable, and plaintiffs are entitled to recover in this action. 5th. That this fi. fa. was a lien on the personal property of Conrad Ernest from the time of its delivery to the sheriff, and the same was not divested by any order made by Judge Junkin in vacation; and if other executions came to the sheriff’s hands afterwards, upon which he sold the property of Ernest, while and at the time this execution was still in his hands, it was his duty to retain and pay to plaintiffs the amount of their fi. fa. out of the proceeds of sale, and having failed and refused to do so, plaintiffs are entitled to recover in this action. 6th. That if the sheriff received this execution’ oh the 9th of - April, 1844, and held the same until the 28th of November following; during which time the property of defendant was sold, and the money made' on other executions/and on the. last-mentioned day returned the writ, stayed by order of court, when no order in fact was made by the court; it is a false return, conclusive upon the sheriff, and it is not competent for the defendants to contradict it; and if they fail to show that it was stayed by order off court, the plaintiffs are entitled to recover. 7th. That if the sheriff received the order of Judge Junkin about the time of the alleged application of Ernest to the associate judge to stay proceedings on the execution; and the associate judge made an order to stay the same without limits or condition, and the sheriff held the order and never returned the same to the court, and no notice was given by the sheriff to the plaintiffs of the same, and the sheriff held the writ in his possession until after the August Term had gone by, and until after the November Term had gone by; during which time he sold the defendant’s property, and received the money, and during all this time no notice or rule was served on the plaintiffs, or any action had in relation to the same, by which the plaintiffs lost their money; the holding over of th & fieri facias, and the withholding of' notice to the plaintiffs, was such a misfeasance and nonfeasance on the part of' the sheriff, as to mate him and his sureties liable in this action. The court (Hepburn, P. J.) charged the jury as follows: — • “ The plaintiffs seem to regard this order of Judge Juntin, staying the execution against Ernest, as a matter betwixt him and the sheriff; which from any evidence before us is clearly not the case. The order of the judge was procured by the defendant in the execution, and was by him handed to the sheriff, and of course binding upon that officer. Nothing was done upon that order afterwards in court by either party — it seems to have slept, and other executions came into the sheriff’s hands against Ernest, which took his property. Under the evidence in the cause the plaintiffs have not made out such a case as will charge the sheriff’s sureties with this debt; your finding should therefore be for the defendants.” Charge excepted to by plaintiffs, and bill sealed. Errors assigned: 1st. The court erred in admitting the evidence in the first bill ef exceptions. 2d. The court erred in answering the plaintiffs’ points in the negative. 3d. The court erred in their charge to the jury in saying the “plaintiffs have not made out such a case as will charge the sheriff’s sureties with this debt; your finding should therefore be for the defendant.” contended: 1st. That the order of the associate judge in vacation, without notice to the plaintiffs, was coram non judice, and afforded the sheriff no protection ; that it was the notice alone to parties in interest, that gave vitality to judicial proceedings. He cited Bagly’s Practice, 17,18, 20, 21, found in 15 Law Library. That without notice, the order Was no supersedeas: lb. 35; Hecker v. Jarret, 3 Binn. 411. 2d. That if the order of the judge did suspend the proceeding until the return day, yet the sheriff made himself liable by concealing the order, and neglecting to return it and the fi. fa., until ■ he had levied and sold the defendant’s personal property on subsequent executions, and paid out the money. That the plaintiffs’ execution was entitled to the money: Beale v. Commonwealth, 7 W. 183-186; Lewis v. Smith, 2 S. & R. 157; Pur. Dig. title Execution, see. 39; Hutchinson v. Johnson, 1 T. R. 729, and note there cited; Stewart v. Stocker, 13 S. & R. 199; Commonwealth v. McCov, 8 Watts, 154; Myers ¶. Commonwealth, 2 W. & S. 62. The order of the judge was a supersedeas to the execution,- and a justification to the sheriff. The judge had jurisdiction over the subject-matter, and his decree was final and conclusive. The sheriff had no right to question or disregard it. As to the power of the judge in vacation to make the order, there can be no doubt. By the 13th section of the act of 22d May, 1772, 1 Sm. Laws, 140, the judges of the Courts of Common Pleas are empowered “ to minister justice to all persons, and to exercise the jurisdictions and powers, &c., as fully, to all intents and purposes whatsoever, as the justices of the Courts of King’s Bench, Common Pleas, and Exchequer, at Westminster, or any of them may or can do.” It is said, the authority of a judge at his chambers is the authority of the court itself: 9 Bing. 104; 2 Maulé & Sel. 119; 1 Dowl. 274; Bagly’s Practice, in 15th Law Lib. 2. Judges at chambers are often called upon ex necessitate rei to set aside irregular judgments signed in vacation; to discharge persons improperly taken in execution: 15 Law Lib. 5; 9 Bing. 104. Such orders may be made without notice, they being deemed the orders of the court; 15 Law Lib. 14. The return in this case rightly made. No breach of sheriff’s bond if he did not return his writ sooner : 8 W. 154, 450. He is not bound to return a writ of fieri facias: Bing, on Executions, 251; 13 Law Lib. 106. A sheriff need not return & fieri facias unless called upon to do so: 13 Law Lib. 109. It is the duty of the party to rule the sheriff to return his writ: Watson on Sheriffs, 83; 7 Law Lib. 60. Sheriff not liable to an action at the suit of plaintiff for not returning a writ of fieri facias. A rule to return his writ may be had by order of a judge in vacation: Sewell on Sheriffs, 413; 46 Law Lib. 360. The supersedeas was the act of the judge, not of the sheriff; and a sheriff is never required to show a judgment, or order, to justify under an execution. Bound to execute orders of the court, at his peril: 46 Law Lib. 90.