Piper v. Elwood
New York Supreme Court
Error to Herkimer C. P. Elwood sued Piper before a justice, and declared upon a judgment which the plaintiff had recovered against the defendant before a justice of the peace for $9,37. On the trial, the judgment was proved; and it further appeared that an execution was issued upon the judgment, which was levied upon one of the defendant’s horses, which was sold for enough to satisfy the execution; and the constable returned it satisfied.
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Error to Herkimer C. P. Elwood sued Piper before a justice, and declared upon a judgment which the plaintiff had recovered against the defendant before a justice of the peace for $9,37. On the trial, the judgment was proved; and it further appeared that an execution was issued upon the judgment, which was levied upon one of the defendant’s horses, which was sold for enough to satisfy the execution; and the constable returned it satisfied. The defendant insisted that the horse was exempt from sale on execution; and he sued the plaintiff in trespass for selling the horse, and recovered. The…
1Opinion of the Court
By the Court, Bronson, Ch. J.
The defendant defeated the effect of the levy and sale, by suing for and recovering the value of the property. The first judgment thereupon revived, and might be enforced. If the judgment had been in a court of record, the plaintiff would have been allowed to amend or strike out the return on the execution, and to have a new execution. (Adams v. Smith, 5 Cowen, 280.) As the justice had no power to order such an amendment, an action on the judg ment was the appropriate remedy.
Judgment affirmed.
2Cited by8 opinions
- Sargent v. SturmCalifornia Supreme Court · 1863
- Weaver v. GuyerIndiana Supreme Court · 1877
- People ex rel. v. FitzpatrickNew York Supreme Court · 1901
- Ames Iron Works v. Kalamazoo Pulley Co.Supreme Court of Arkansas · 1896
- Biscoe v. SandefurSupreme Court of Arkansas · 1854
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