Henderson v. Gandy's Adm'r.
Supreme Court of Alabama
Error to the Circuit Court of Butler. Tbespass vi et armis, by the defendant in error, against the plaintiffs in error, and one McKain, a constable, as to whom the cause was discontinued.
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Error to the Circuit Court of Butler. Tbespass vi et armis, by the defendant in error, against the plaintiffs in error, and one McKain, a constable, as to whom the cause was discontinued. Upon the trial of the cause, as appears by a bill of exceptions, it was proved that the property described in the declaration was levied upon and sold by McKain, a constable, by virtue of an execution from a justice’s court, by order of the defendants, upon a judgment obtained against plaintiff’s intestate, in his life. That several executions had from time to time issued on the judgment, in the life-time of…
1Opinion of the CourtOrmond, J.
An execution issued upon a judgment, after the defendant is dead, is an absolute nullity. It is so wholly void, that a sheriff into whose hands it may come, cannot be ruled for not returning it. [Holloway v. Johnson, 7 Ala. R. 660.] An exception to this rule obtains where an execution has issued in the lifetime of the deceased, then it appears, if there has been no chasm, by the lapse of a term, but the lien has been regularly continued, an alias may issue after the death of the defendant in the judgment. [Collingsworth v. Horn, 4 S. & P. 237.]
This rule is confined in its operation to…
2Cited by2 opinions
- Beach v. DennisSupreme Court of Alabama · 1872
- Graham v. ChandlerSupreme Court of Alabama · 1849