I. In general. b. The writ of fieri facias upon a judg a. The return of an officer upon an execument for a fine against a person convicted tion, while it is-with some important exof a misdemeanor ought to run against ceptions-conclusive upon the parties to the goods and chattels and real estate. Gill v. action until vacated, neither binds nor proState, 26 L.R.A. 655, 39 W. Va. 479, 20 S. tects one who was not a party to the action in which it was issued. Meherin v. Ambrose, 54 L.R.A. 272, 131 Cal. 681, 63 Pac. 1084. E. 568. § 6. Time of issuing. Effect of expiration of limitation period for enforcement of judgment on right to issue execution thereon, see LIMITATION OF ACTIONS, § 52 f. a. When the right to seize and sell land in satisfaction of a judgment, exists, it must be exercised within such period as the law giving the right, appoints. Lyon use of Conklin v. Cleveland, 30 L.R.A. 400, 170 Pa. 611, 33 Atl. 143. b. A delay of eight months in issuing execution on a judgment is not unreasonable. Douglass v. Loftus, L.R.A.1915B, 797, 85 Kan. 720, 119 Pac. 74. c. An execution cannot be said to be issued within the meaning of the statute re quiring it to be issued within one year in order to preserve the lien of a judgment, until it is delivered to an officer to execute. Pease v. Ritchie, 8 L.R.A. 566, 132 Ill. 638, 24 N. E. 433, writ of error dismissed in 140 U. S. 693, 35 L. ed. 594, 11 Sup. Ct. Rep. 1026. § 7. Amendment; validating. a. The court may permit the fact of receipt by the sheriff of an execution, which had not been entered thereon through oversight, to be indorsed on the writ after the issuance of a writ of capias ad satisfaciendum. Forsythe v. Kinne, L.R.A.1915A, 706, 180 Mich. 633, 147 N. W. 549. b. An execution issued without the seal required by statute is not void, but may be amended after a sale of property under it, under a statute empowering courts, in furtherance of justice, to amend any process by correcting a mistake in any respect. Kipp v. Burton, 63 L.R.A. 325, 29 Mont. 86, 74 Pac. 85. e. An act of the court is not necessary to validate an execution from which the seal was omitted, under a statute making valid all judicial sales, and directing that all irregularities in the issuance of the execution shall be disregarded. Kipp v. Burton, 63 L.R.A. 325, 29 Mont. 86, 74 Pac. 85. § 8. Return. Against corporation as condition precedent to enforcing stockholder's liability, see CORPORATIONS, § 302 b-d. Effect of statement in, on judgment in ejectment, see EJECTMENT, § 25 b. As condition precedent to allowance of release in equity, see EQUITY, § 5 a. Weight to be given to, see EVIDENCE, § 1547 b. Right to sell after, see JUDICIAL SALE, § 32. Sufficiency of return of levy, see LEVY AND SEIZURE, § 52. Effect of return unsatisfied of execution on purchase money note on right to recover on vendor's warranty, see SALE, § 150 C. b. The return of the officer selling property under execution, that it sold for a certain sum, is not conclusive in favor of the purchaser that the price was paid. Meherin . Ambrose, 54 L.R.A. 272, 131 Cal. 681, 63 Pac. 1084. § 9. Lien of. Lien of judgment, see JUDGMENT, V. real estate under executory contract of Termination of, by sale, see JUDICIAL SALES, purchase, see JUDGMENT, § 246 a. SS 14, 15. Extension of, by grant of injunction re- a. An execution issued upon a judgment rendered in a justice of the peace court, although not a court of record, has the same effect as a lien as one issued from a court of record, notwithstanding a statute expressly controlling justices' courts; and a contrary intent is not shown by a statute providing for the filing in a specified court of record of a transcript of the justice's docket, and the issuing of execution therecourt, since such statute merely provides on with like effect as of a judgment of that a discretionary method of issuing execution. 67 W. Va. 104, 67 S. E. 174. Park v. McCauley, 28 L.R.A. (N.S.) 1036, b. The lien of an execution extends only to property located in the county to which the execution is directed. Smith v. Johns, 45 L.R.A. (N.S.) 266, 126 Tenn. 435, 150 S. W. 97. (Annotated) c. The lien of an execution can affect only such subjects as exist when it is alive. Boisseau use of Robinson v. Penn, 57 L.R.A. 380, 100 Va. 207, 40 S. E. 647. d. A debt which has a present existence although payable at some future day is subject to the lien of a fi. fa. and may be reached by garnishment or other appropriate proceedings but the rule is otherwise where the debt rests upon a contingency which may or may not happen, and over which the court has no control. Boisseau use of Robinson v. Penn, 57 L.R.A. 380, 100 Va. 207, 40 S. E. 647. e. A fieri facias is a lien under W. Va. Code, chap. 141, § 2, upon personal property not of such nature as to be leviable, owned by the debtor before its return day, if docketed as required in said section, without any further notice; but if not so docketed it is not a lien as against a bona fide purchaser, whether he purchased before or after the return day. Wiant v. Hays, 23 L.R.A. 82, 38 W. Va. 681, 18 S. E. 807. f. A writ of fieri facias in the hands of an officer for execution is, under a statute providing that an execution shall be a lien I. In general. is exempt because rendered for the value of exempt property. Below v. Robbins, 8 L.R.A. 467, 76 Wis. 600, 45 N. W. 416. "upon all the personal estate of which the § 3028, does not extend to a judgment which judgment debtor is possessed, or to which he is entitled," a lien upon a legacy given to the debtor, although it is in the hands of the executor. Park v. McCauley, 28 L.R.A. (N.S.) 1036, 67 W. Va. 104, 67 S. E. 174. g. The interest of the assured in a twenty-year distribution policy of insurance on his life, which will cease on his failure to pay premiums, is not an estate within the meaning of a statute making an execution a lien from the time it is placed in the hands of the officer on all the personal estate of or to which the judgment debtor is, or may afterwards and before the return day of the writ become, entitled. Boisseau use of Robinson v. Penn, 57 L.R.A. 380, 100 Va. 207, 40 S. E. 647. c. That a plaintiff would be entitled to hold the proceeds of his judgment free from execution under the exemption laws does not prevent the application to it of a statute directing the sheriff, in case executions in favor of both parties come to his hands, to set off one against the other, with certain specified exceptions, among which is not found that claimed by plaintiff. Caldwell v. Ryan, 16 L.R.A. (N.S.) 494, 210 Mo. 17, 108 S. W. 533. (Annotated) § 12. Stay. Injunction to restrain enforcement of judg ment where law court refuses stay pending appeal, see INJUNCTION, § 111 n. Effect of, to release surety, see PRINCIPAL AND SURETY, § 22. a. The power of courts to stay temporarorder that the ends of justice may be acily the issuing of execution is exercised in complished. Jacksonville, T. & K. W. R. Co. v. Adams, 14 L.R.A. 533, 28 Fla. 631, 10 So. 465. h. W. Va. Code 1906, chap. 141, § 2, providing that notice of the issuance and placing in the hands of an officer of an execution is sufficient to fix liability on one owing money to a judgment debtor, is not modi fied by § 11 thereof, providing that, if such third person is liable at the time of the service on him of a summons to answer a suggestion to enforce the execution lien, he shall be required to pay, so as to relieve from liability one who, with notice of the issuance and placing in the hands of the officer of an execution against a judgment debtor, paid the judgment debtor before is suance of the suggestion and summons to answer it, since the latter section does not state court should stay its execution on c. Pending proceedings in bankruptcy, a create a lien, but merely provides a method the judgment in an action for fraud. Louisof enforcing the antecedent lien of the ex-ville Dry Goods Co. v. Lanman, 28 L.R.A. ecution. Park v. McCauley, 28 L.R.A. (N.S.) 1036, 67 W. Va. 104, 67 S. E. 174. § 10. priority. Priority of lien of judgment, see JUDGMENT Priorities under levy, see LEVY AND SEIZ- a. As the object of an execution is to ob tain, without delay, satisfaction of the judgment on which it issues, any act of the judgment creditor diverting it from such purpose renders it inoperative against oth er creditors and gives priority to junior writs. Sweetser v. Matson, 27 L.R.A. 374, 153 Ill. 568, 30 N. E. 1086. § 11. Payment; satisfaction and dis- Attorney's authority as to, see ATTORNEYS e. Satisfaction of, as waiver of right to new trial, see NEW TRIAL, § 67 b. a. Failure to return an execution does not raise a presumption in favor of the debtor that it was paid to the sheriff, especially where it is shown that the debtor was not at the time possessed of personalty out of which the execution could have been satisfied. Paxton v. Rich, 1 L.R.A. 639, 85 Va. 378, 7 S. E. 531. b. The right to pay a debt to the sheriff if he has an execution against the creditor for the amount due, under Wis. Rev. Stat. its enforcement different effect upon a judgment than to (N.S.) 363, 135 Ky. 163, 121 S. W. 1042. d. An execution on a judgment in favor of the makers of a note, after the rescission of a contract in which it was given, against the payees, who have indorsed it to bona fide holders before maturity, should be stayed until defendants are relieved of their liability as indorsers. Baker v. Brem, 4 L.R.A. 370, 103 N. C. 72, 9 S. E. 629. e. Execution should be stayed on a judg ment in ejectment in favor of nonresident plaintiff's until payment of damages due from them, by virtue of their inheritance of other property, to defendant for breach of covenant of an ancestor in relation to the land in suit, although their title to it was derived from another source; and in such case the amount of the damages should be assessed in the ejectment suit. Foote v. Clark, 11 L.R.A. 861, 102 Mo. 394, 14 S. W. 981. II. Supplementary proceedings; receivership in aid of execution. § 13. Generally. Effect of pending appeal by one party, to Requiring defendant to give security for appearance, see BAIL AND RECOGNI ZANCE, § 2 b. II. Supplementary proceedings; receivership in aid of execution. Burden of proving title, see EVIDENCE, § any individual right, title, or interest in 463 c. Order in, see MOTIONS AND ORDERS, § 9 d. Right to refer question of validity of liens against property of judgment debtor to receiver appointed in aid of execution, see REFERENCE, § 2 f. Removal of proceeding for appointment of receiver in aid of execution, see REMOVAL OF CAUSES, § 8 a. a. The rendition of a money judgment and award of execution does not exhaust the court's jurisdiction, but, in case the execution is returned unsatisfied, it may entertain an application for a receiver to impound the debtor's assets as a proceeding auxiliary to the primary suit. Phelps v. Mutual Reserve Fund Life Asso. 61 L.R.A. 717, 112 Fed. 453, 50 C. C. A. 339, aff'd in 190 U. S. 147, 47 L. ed. 987, 23 Sup. Ct. Rep. 707. b. The service upon a judgment defendant of a notice requiring him to appear and answer questions regarding his assets, under the statute relating to supplementary proceedings in aid of execution, no order being made forbidding the transfer or other disposition of his property, does not give plaintiff a lien upon funds held by the defendant, nor prevent the defendant from withdrawing such funds from the reach of his creditors by investing them in a homestead. McConnell v. Wolcott, 3 L.R.A. (N.S.) 122, 70 Kan. 375, 78 Pac. 848. (Annotated) c. Examination of a wife on supplementary proceedings against her husband, with respect to property in her possession, is not an examination "for or against her husband," within the meaning of 2 Hill's (Wash.) Code Proc. § 1649, requiring the husband's consent to her examination for or against him. Frankenthal v. Solomonson, 44 L.R.A. 311, 22 Wash. 460, 55 Pac. 754. d. A court cannot, by means of a receivership in aid of execution, conduct the business of a private partnership as it might that of a railroad or other business charged with a public duty. First Nat. Bank v. Cook, 2 L.R.A. (N.S.) 1012, 12 Wyo. 492, 76 Pac. 674. § 14. Property which may be reached by. Exemption of wages, see EXEMPTIONS, § 37 f. See also ante, § 13 b. a. Proceedings supplementary to execution being intended to take the place of a creditors' bill, it is proper, in such proceed, ings, to order an execution debtor to make an assignment to a receiver of his title to an interest in a stock exchange. Habenicht v. Lissak, 5 L.R.A. 713, 78 Cal. 351, 20 Pac, 874. the property or assets of the association, except when the same shall be finally dis solved," and that any application for membership may be rejected. Habenicht v. Lis sak, 5 L.R.A. 713, 78 Cal. 351, 20 Pac. 874. c. Property cannot be applied in satis. faction of a judgment by a proceeding in aid of execution, unless the title of the judgment debtor thereto is clear and undisputed. First Nat. Bank v. Cook, 2 L.R.A. (N.S.) 1012, 12 Wyo. 492, 76 Pac, 674. d. The statutory proceeding in aid of execution cannot accomplish in all respects the results secured by a creditor's bill since, if property is alleged to have been fraudulently conveyed, or if it is subject to claims or liens of third persons, there is a lack of proper parties to permit of a proper adjustment of all interests, and the rendition of a decree that will be effectual from a jurisdictional standpoint. First Nat. Bank v. Cook, 2 L.R.A.(N.S.) 1012, 12 Wyo. 492, 76 Pac. 674. e. Where, in proceedings supplementary to an execution, money seeming to belong to the judgment debtor has been discovered in the possession of a third party, and such party has been directed to pay it into court, and a receiver has been appointed to take charge of it, he cannot maintain an action against the persons laying claim to it, for the purpose of determining who has the superior right thereto; such question must be settled by the filing of interpleaders in the supplementary proceedings and the contesting of the conflicting claims therein. Wilson v. Chichester, 10 L.R.A. 572, 107 N. C. 386, 12 S. E. 139. § 15. Respective rights of receiver and lien creditors. a. Lien creditors of a judgment debtor, who were not parties to the proceedings in which the judgment was rendered, cannot contest the appointment of a receiver in aid of execution which is authorized by statute. First Nat. Bank v. Cook, 2 L.R.A. (N.S.) 1012, 12 Wyo. 492, 76 Pac. 674. b. There is no jurisdiction to adjudicate the validity of liens claimed by third persons upon property of a judgment debtor appointed in aid of execution against him; in a proceeding in which a receiver has been direct proceedings instituted by the receiv but such questions must be determined in er for that purpose. First Nat. Bank v. Cook, 2 L.R.A. (N.S.) 1012, 12 Wyo. 492, 76 Pac. 674. c. The appointment of a receiver in proceedings in aid of execution does not affect mortgage liens upon the debtor's property, nor prevent the mortgagees from pursuing any method of realizing their claims. out of the property upon which they are secured which would be open to them had no receiver been appointed. First Nat. Bank v. Cook, 2 L.R.A. (N.S.) 1012, 12 Wyo. 492, 76 Pac. 674. b. A seat or membership in a stock ex change is property subject to be applied to the debts of the owner, although the constitution and by-laws of the exchange provide d. A receiver appointed in proceedings that "no member, under any circumstances, in aid of an execution, who takes possesshall be deemed to have or claim or possess sion of property subject to mortgage, must II. Supplementary proceedings; receivership in aid of execution. surrender his possession whenever demand- Issue of, to take accused into custody after 'ed by the mortgagees under authority of expiration of term, see CRIMINAL LAW, the provisions of their contract. First Nat. § 201 c. Bank v. Cook, 2 L.R.A. (N.S.) 1012, 12 Wyo. 492, 76 Pac. 674. Habeas corpus to inquire into denial of bail Mandamus to compel discharge of, see MAN- e. A court which has appointed a receiver in aid of execution cannot appropriate property in his possession, which is subject to a mortgage lien, to the payment of the costs of the proceeding, the conser-ad vation of the property, expense of the receivership, or the compensation of the receiver. First Nat. Bank v. Cook, 2 L.R.A. (N.S.) 1012, 12 Wyo. 492, 76 Pac. 674. (Annotated) f. The expense of a receivership established in aid of execution against a private partnership cannot be given priority over the claims of mortgage creditors. First Nat. Bank v. Cook, 2 L.R.A. (N.S.) 1012, 12 Wyo. 492, 76 Pac. 674. (Annotated) III. Body execution. § 16. Generally. a. Failure to begin an action by capias respondendum does not prevent the is suance of a capias ad satisfaciendum in cases where a body execution is permissible. Forsythe v. Kinne, L.R.A.1915A, 706, 180 Mich. 633, 147 N. W. 549. (Annotated) b. A new execution issued after the es cape of the debtor under a previous execu tion is irregular and not void for lack of notice and is a sufficient warrant for the arrest and recommittment and for the detention of the debtor. Re McManaman, 1 L.R.A. 561, 16 R. I. 358, 16 Atl. 148. c. At common law when the debtor escapes after arrest, or commitment, or execution, it is competent for the creditor to Right to bail of one seized under, see BAIL sue out another execution and have him rearrested and again committed thereon. Re McManaman, 1 L.R.A. 561, 16 R. I. 358, 16 Atl. 148. coscos coscoscoscos coscos coscos coscos coscos coscoscoscosco. 2. Necessity of. 3. Who may be appointed.. collateral attack. 15. Revocation; nullification. 16. upon discovery of, or setting aside of will. 17. Administrator de bonis non. 18. Bond. 19. Refusal to accept office. § 20. Resignation. . II. Powers and liabilities; conduct of estate; assets. a. Rights, powers, and duties. 1. In general. § 21. Generally. § 22. Duty to render professional services. § 24. Coexecutors or coadministrators. § 26. Executor de son tort. 27. As to inventory. 28. As to investments. 30. To mortgage estate. § 31. Use of funds. § 32. To bind estate by contract. 33. 34. § 35. creating debt. guaranty. § 36. Tort of executor or administrator. 2. Possession or disposal of property. § 38. Generally. 39. Power to dispose of personal property. b. Real property. § 40. Generally. L.R.A. Comb. Dig.-280. |