Cass County IL Archives Court.....McHenry, V Watkins 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 23, 2008, 12:30 pm

Source: Records Of Cases Illinois
Written: 1850

Henry McHenry, plaintiff in error, v. Thomas Watkins, defendant in error.

Error to Cass.

It is error, to overrule a motion to quash an execution issued, after the 
judgment on which it is based is satisfied. (a)

This was a proceeding by motion in the Cass Circuit Court, to set aside an 
execution issued upon a judgment in favor of Watkins, against McHenry and 
another, upon the ground that the judgment upon which the execution had been 
issued was satisfied. The record shows that a notice of the proposed motion to 
quash had been given, and an order to stay proceedings upon the execution, 
under the provision of section 46 of chapter 83 of the Revised Statutes, was 
granted by the Circuit Judge.

The motion came on for hearing at November term, 1850, before Minshall, Judge, 
who denied the same.

Lincoln & Herndon, for plaintiff in error. 

Wm. Thomas, for defendant in error.

Treat, C. J. On the twentieth of May, 1845, Watkins recovered a judgment 
against McHenry and Perkapile, for $462.64. On the eighteenth of May, 1846, by 
virtue of an execution issued on this judgment, the sheriff sold to Watkins 
several tracts of land as the property of McHenry, for the aggregate amount of 
$350. On the first of March, 1847, Perkapile paid Watkins, on account of the 
judgment, $270.25. At the October term, 1848, Watkins entered a motion to set 
aside the sale of two of the tracts of land, which were bid off for the sum of 
$75 each, on the ground that McHenry had no title thereto; which motion the 
court sustained in these words: "It is ordered, that the sale of said lands be 
set aside and held for naught, and that plaintiff have execution upon his 
judgment for the amount for which said lands were sold." On the twenty-sixth 
of February, 1849, an execution issued on the judgment, on which the clerk 
endorsed as credits, $200 made by the sale of land, and $270.25 paid by 
Perkapile. The sheriff returned this execution satisfied in full. On the ninth 
of July, 1849, another execution issued, on which the clerk directed the 
sheriff to collect the sum of $150, and interest from the eighteenth of May, 
1846. At the October term, 1849, McHenry entered a motion to quash this 
execution. During the same term, the sheriff, by leave of the court, so 
amended his return on the execution of the twenty-sixth of February, 1849, as 
to show the receipt of $68.47, which sum he and McHenry at the time supposed 
to be the true amount due on the judgment. At the succeeding term, the court 
overruled the motion made by McHenry to quash the execution; and that decision 
is assigned for error.

The court erred in refusimg to quash the execution. The judgment was fully 
satisfied by the payment made on the previous execution. The clerk seems to 
have construed the order of the setting aside the sale of the two tracts of 
land, as a specific direction that the plaintiff should have execution for 
$150. The order was not intended to have that effect. Allowing the sale of the 
two tracts to stand, the judgment was already overpaid; vacating the sale as 
to them, the amount actually due on the judgment was collected on the 
execution of the twenty-sixth of February, 1849. The order amounted to but 
this; that the sale of the two lots of land should be set aside, and the 
plaintiff should have execution for whatever balance might be due on the 
judgment, after crediting it with $200, made by the sale of McHenry's land, to 
which there was no objection, and the further sum of $270.25 paid by the other 
judgment debtor. This balance having been paid, the issuing of the execution 
in question was irregular and unauthorized. 

The judgment of the Circuit Court must be reversed, with costs; and the cause 
will be remanded, with directions to that court to quash the execution.

Judgment reversed.

---------------
(a) Russell v. Hugunin, 1 Scam., 562; Robinson v. Casseldine, 4 Scam., 332; 
Day v. Graham, 1 Gil., 435, accord.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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