Plough v. Reeves

Gregory, C. J.

This is a motion for “leave of court”.to issue an execution on a judgment after the lapse of ten years from the entry thereof.

Plough, the appellant, filed an answer in six paragraphs, ■the first of which was a denial that the judgment was unsatisfied. The court below, on motion, struck out the third .and fourth paragraphs, to which the defendant excepted.

The defendant, on motion, was required to furnish the plaintiffs with a full and complete bill of particulars to each remaining special paragraph of the answer. The defendant «excepted. On the failure of the defendant to comply with *182 the order, the court struck out the remaining paragraphs except the denial.

C. N. Pollard and H. A. Brouse, for appellant. J. W. Robinson, for appellees.

The issue was submitted to the court; finding for the plaintiffs; motion for a new trial overruled; and execution awarded, on the judgment.

The section of the statute under which this proceeding was. had is as follows: “After the lapse of ten years from the entry of a judgment, an execution ears he issued only on leave of court, upon motion, after teD days personal notice to the adverse party.” * * * * “ Such leave shall not be given, unless it he established by the oath of the party, or other satisfactory proof, that the judgment, or some part thereof, remains .unsatisfied and due.” Acts 1867, p. 102, sec. 406.

No pleadings are contemplated or required in a proceeding of this kind. It is a simple motion, to he heard by the court, in a summary way; the only question being whether the judgment, or any part thereof “remains unsatisfied and due.”

If the judgment-defendant has. any equities, or cross- action, he must resort to his remedy by suit, in which pleadings and a trial by jury can be had. Therefore the action of the court below on the pleadings cannot be the basis for the assignment of error In this court.

Judgment affirmed, with costs.