Culbertson v. Milhollin

Davison, J.

This was replevin, by the appellee, who was the plaintiff, against Culbertson, commenced before a justice of the peace, for the recovery of a dun colt. The plaintiff claimed title, under a constable’s sale,~by virtue of an execution, issued upon a judgment, in which he was plaintiff, and Culbertson was defendant. The justice gave judgment in favor of the plaintiff for 25 dollars, and the defendant appealed.

In the Common Pleas the issues were tried by the Court, who found for the plaintiff 30 dollars. Motion for a new trial overruled and judgment.

The evidence shows that Milhollin, the present plaintiff, on January 23, 1860, recovered a judgment against Culbertson, before a justice of the peace, for 3 dollars and 88 cents, and that on the 3d of July, then next following, an execution was thereon issued, upon which the constable, on the 1st of January, 1861, made a return as follows :

“This writ came to hand July 3, 1860. By virtue of said writ, Ilevied on one shovel plow and one cane mill, and offered *363 the same for sale on July 14th, 1860, and there was no sale for want of bidders. Service, 25 cents; mileage, 70 cents;; advertising, 30 cents; return 10 cents; the whole 1 dollar and 35 cents. Henson Lines, Constable.”

After this, on January 4th, 1861, another execution was issued on said judgment, upon which the constable made the the following return:

■ “ This writ came to hand January 17, 1861. By virtue of this writ, I levied on one dun colt. Advertised for sale February 1,1861; offered for sale February 11, 1861, and sold to Nathan Milhollen for 9 dollars and- 60 cents.

' “Henson Lines, Constable.”

The evidence further shows that the plaintiff, upon the service of the first execution, gave up the plow and cane mill to the constable, who levied on, advertised and offered the same for sale, and there being no sale for want of bidders, he left the property on the premises of the defendant, where it has remained near his residence ever since. It also appears, tlmt when the colt was levied on, the defendant was absent from home, and that at the time of the last levy, the plow and cane mill were both on the defendant’s premises, of which the constable was notified.

The appellant contends, that there being in the record no evidence that the requisite notice of the sale of the property was given by the constable, the sale was invalid. This position is untenable. The record being silent as to whether the constable did or not advertise the sale, he will be presumed to have done his duty. Mercer v. Doe, 6 Ind. 80 .

Again, it is insisted, that the second execution—the justice having failed to "append to it a copy xof the return made on the first—was a nullity. The, statute required the justice to *364 append such. copy. 2 R. S. (G. & H.) p. 602, sec. 80. But his failure, in this instance, to do so, rendered the execution voidable merely, but not void. And being thus voidable, might have been set aside on motion before the justice; but no such ' motion having been made, “ all acts done under it are valid.” Doe v. Dutton, 2 Ind. 309 .

Walter March, for the appellant. C. F. Shipley and A. Kilgore, for the appellee.

Various other points, relative to the rulings of the Court, are made by the appellant. These we do not deem it material to notice; because, in looking into the whole record, we are of opinion that the finding and judgment are right on the evidence. 2 R. S. (G. & H.) p. 122, sec. 101.

Per Curiam.

The judgment is affirmed, with 5 per cent, damages and costs.