Nye v. Cleveland, Lewis & Co.
Mississippi Supreme Court
Appeal from the Circuit Court of Yazoo county. Hon. E. Gr. Henry, judge. Contended that the quashing of an execution for any irregularity whatever, annulled it ab initio, and avoided all intermediate acts done in pursuance of it, and that its whole effect and force being thus destroyed, it could not take a judgment out of the Statute of Limitations; and he cited 2 Tucker, Com. 339. Contended, that the execution was not absolutely void, but merely voidable; that being only…
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Appeal from the Circuit Court of Yazoo county. Hon. E. Gr. Henry, judge. Contended that the quashing of an execution for any irregularity whatever, annulled it ab initio, and avoided all intermediate acts done in pursuance of it, and that its whole effect and force being thus destroyed, it could not take a judgment out of the Statute of Limitations; and he cited 2 Tucker, Com. 339. Contended, that the execution was not absolutely void, but merely voidable; that being only voidable, it was still an “execution;” and that the statute refers the commencement of the running of the period of…
1Opinion of the CourtSmith, C. J.
This was a motion made in the Circuit Court of Yazoo county to quash an execution.
The execution in question was issued on the 14th day of October, 1852, upon a judgment recovered on the 20th of May, 1845, in said court, by Cleveland, Lewis & Co., against N. Gr. Nye, the appellant.
The grounds upon which the motion was based were: First. There was an illegal taxation of costs. Second. A greater rate of interest was demanded by the execution than was authorized by the judgment; and, Third. “ No valid alias fi. fa. had issued on said judgment within seven years, from' the 26th of June, 1845, the…
2Cited by1 opinion
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