Hay v. Hayes

Mr. Chief Justice Lawrence delivered the opinion of the Court:

This was an action of replevin, brought by Elizabeth Hay against John E. Hayes, to recover three horses. The defendant pleaded that he was sheriff, and had seized the horses by virtue of certain executions against plaintiff’s husband. The verdict and judgment were for the defendant.

Counsel for appellant insist that the court erred in overruling a motion to strike certain pleas from the files, but this motion was not preserved in the bill of exceptions. Motions of this character, and the decision of the court thereon, are made a part of the record only hy a bill of exceptions.

The judgments upon which the executions issued were properly admitted in evidence, except that in favor of Harriet L. Guier. This was a judgment originally rendered before a justice of the peace, in 1863, and no execution was issued thereon until 1869, when one was issued, and returned mulla, l>ona. A transcript was then filed in the clerk’s office of the circuit court, and execution issued.

If execution is not issued on a judgment in a court of record within a year, it so far loses its vitality that none can issue until the judgment has been revived. Greater effect should not be given to a judgment before a justice than to a judgment of a court of record, and, if the party recovering such a judgment fails to sue out an execution within a year from its rendition, his only remedy would be another suit upon the judgment. This judgment was improperly admitted in evidence, but it worked the plaintiff no harm, as the justification of the officer was complete under the others, and its admission is therefore no ground for reversal.

It is not necessary to consider the instructions in detail. They gave to the jury the law governing the case, with substantial correctness, and, on the undisputed facts, the verdict was clearly right. Two of the horses were bought with the earnings of the wife, which, as the law then stood, belonged to the husband. The fact that she received sewing machines for her earnings, instead of money, and bartered them for horses, does not change the character of the transaction. The third horse bought of Taylor was sold and delivered by him to plaintiff’s husband, and the plaintiff subsequently gave her note to Taylor for the price. It is perfectly clear, from the testimony of both Taylor and the plaintiff, that her note was given merely to shield the property from the creditors of her husband. The judgment must he affirmed.

Judgment affirmed.