of his property, with respect to other judgment creditors. Several decisions have been made upon these provisions, the most important of which are, that if there be several judgments of the same term, and no levy within the year, they all stand upon an equal footing, and the first levy will have the preference; but if of different terms, the elder judgment still retains the preference; that when the title of the debtor was acquired after the judgment, the lien does not attach until levy; and that the lien does not in any case attach to an equitable title. In any other State or territory of the Union, though a judgment neither operates as a lien, nor authorizes execution, yet a mere exemplification of the record, according to the act of Congress, forms the highest possible evidence of debt, because the original merits of the case cannot be called in question; and in the action of debt brought to carry it into effect, the only issue is upon the record itself. Such, then, is the effect of a judgment, unless suspended by an injunction, which will be described hereafter, or superseded or reversed by an appeal or writ of error, which are now to be described. (a)

Appeal. The nature of appellate jurisdiction has been already explained. An appeal lies only after the rendition of final judgment in the court below. Notice of intention to appeal must be given during the term, and entered on the journal; and within. thirty days after the end of the term, the appeal thus notified must be perfected. This is done as follows: The appellant enters into a bond to the appellee, with such security as the clerk shall approve, in double the amount of the judgment, conditioned for the payment of the judgment and costs in the court above, if the same be against the appellant. The clerk then makes out a transcript of the proceedings, and delivers it, with all the papers in the cause, to the clerk of the court above. The whole case, including questions

(a) Strictly speaking, there are but two general forms of judgment; namely, for the plaintiff and for the defendant. For the plaintiff the form is: Therefore it is considered by the court that the plaintiff recover of the defendant the said sum of dollars, his damages aforesaid assessed, and also his costs in this behalf expended, taxed to dollars. For the defendant the form is: Therefore it is considered by the court that the defendant go hence without day, and recover of the plaintiff his costs in this behalf expended, taxed to dollars. But unless these judgments are rendered directly upon a verdict, they are always prefaced by the circumstances under which they are rendered. For example, a judgment by default would be entered thus: This day came the plaintiff by his attorney; and the defendant, though solemnly called, came not, but made default; whereupon it was considered by the court that the plaintiff ought to recover his damages by reason of the premises; and no jury being demanded, and the court being fully advised in the premises, did assess the damages to dollars. Therefore it is considered, &c. And a judgment confessed under a power of attorney would be entered thus: This day came into court his attorney, and filed his declaration against one of the attorneys of this court, appeared on behalf and by virtue of a power of attorney for that purpose, duly executed by the said and now produced in court and duly proved, did waive the issuing and serving of process, and did acknowledge that the said did owe the said plaintiff [or did assume and promise.] in manner and form as the said plaintiff has declared; and did confess that the said plaintiff has sustained damages by reason thereof to $ Therefore it is considered, &c. And by virtue of the said power of attorney all error is released, and the right of appeal waived. [Signature of the attorney on the journal ]

; and thereupon

of the said

by

of law and fact, is thus removed for rehearing, and stands for trial in the court above, in the same manner as if it had been commenced there originally. The judgment, however, in the court below is not absolutely vacated by the appeal, for it still operates as a lien upon the real estate of the judgment debtor; but all proceedings to enforce it are in the mean time suspended; and it becomes finally merged in the judgment rendered above. You will remark that it is often for the interest of the prevailing party that his cause should be appealed; because he thereby obtains absolute security for the satisfaction of the judgment. Moreover, the abuse of the privilege is guarded against by penalties, where the only objection. is delay.

Writ of Error. (a) This proceeding is designed to bring up questions of law only, for revision in the court above. At any time within five years after rendition of judgment, if there be substantial errors on the face of the record, a party may apply to the court above, or to one of the judges thereof, for the allowance of a writ of error. For this purpose a certified transcript of the record below is procured from the clerk, and the alleged errors are thereon specifically assigned or pointed out. The allowance of the writ, by the judge or court above, is matter of discretion. If it be allowed, the fact is indorsed by the judge or clerk on the transcript presented. This is handed to the clerk of the court above, who thereupon issues the writ of error, commanding the judges below to certify up the proceedings. At the same time, a citation issues to the adverse party that he may appear and attend to his interest. The party applying for the writ is denominated the plaintiff in error, and the other, defendant in error. If the judgment below is to be superseded, the plaintiff in error must give bond, as in case of appeal; and then the judgment below will merely operate as a lien; but, otherwise, it will remain in full force for all purposes until reversed above. Our present law allows proceedings to be amended

(a) Groves v. Stone, 3 Ohio State, 576; Schooner Marinda v. Dowlin, 4 id. 500; Ex parte Collier, 6 id. 55; Hobbs v. Beckworth, 6 id. 254; Steubenville, &c. R. R. Co. v. Patrick, 7 id. 170; Singer v. Bell, 8 id. 291. Goode v. Wiggins, 12 Ohio State, 341; Smetters v. Rainey, 13 Ohio State, 568; s. c. 14 Ohio State, 287; Stewart v. Williams, 15 Ohio State, 484; Schaeffer et al. v. Marienthal, Lehman, & Co. 17 Ohio State, 183. By the Code, there is no longer a writ of error or certiorari, but only a petition in error, and the time of limitation is three years, instead of five. It lies to the common pleas, to reverse, vacate, or modify any judgment, or final order of any inferior tribunal, board, or officer, and to the district court to do the like with respect to the common pleas, for errors appearing on the record. It also lies to the supreme court, on special leave, in all the preceding cases. The plaintiff in error must file with his petition an authenticated transcript of the proceedings below, whereupon a summons issues, which may be served upon the defendant or his attorney of record. In order to stay execution, security must be given to the satisfaction of the court or clerk; and where the judgment is upon a contract for money only, the plaintiff below may still obtain leave to enforce the judgment, upon giving security for restitution. If the judgment below be reversed, the court may either render the proper judgment or remand the case for that purpose; but the reversing court in no case issues execution. § 511-33. See provisions of the act of April 11, 1857, taking the place of § 526 of the Code. See Ex parte Collier, 6 Ohio State, 55.

error.

even after a writ of error. If, therefore, the defect be such as an amendment will cure, there is no use in resorting to a writ of A writ of certiorari is analogous to a writ of error; but it issues from a higher court to any lower court, whether of record or not; and at any stage of the proceedings, as well before as after judgment. The writ of error now described is called a writ coram vobis, to distinguish it from one coram nobis, by which the highest court revises its own decisions. We have a statutory provision for both these writs. The principle is, that errors are to be corrected whenever discovered. (a)

§ 214. Execution. (b) If execution be not prevented in one of the ways before described, it may be ordered out by a precipe, at the pleasure of the party interested. Execution may either be against the person or property of the judgment debtor. 1. The writ against the person is called a capias ad satisfaciendum or ca. sa. It can only be obtained under the circumstances and by means of the preliminary steps before described for procuring a writ of capias ad respondendum, together with the order of the court or judge. It commands the sheriff to take the body of the judgment debtor, and hold him in custody until he satisfies the judgment, or is otherwise legally discharged. Accordingly, when arrested on this

(a) Form of a Writ of Error. To the Judges of the Court of ——— within and for said county. Because in the record and proceedings in a certain action of which was lately in our said court before you, wherein

is plaintiff, and

is defendant, error has intervened, as is said, to the damage of the said and we being willing that such error, if any there be, should be corrected, and full and speedy justice done in the premises, do command you, that if judgment be thereupon given, then, without delay you send to us, under the seal of your court, an authenticated transcript of the record and proceedings aforesaid, together with this writ; so that, the same being inspected, we may, at the next term of our supreme court, to be holden at -, cause to be done, what of right ought to be done.

on

And the said

Assignment of Errors. now comes and says that in the record and proceedings aforesaid there is error in this, to wit: 1. That, &c. [specifying each of the errors separately]. Wherefore the said prays that a citation [and a supersedeas if bond be given] may issue, that the said judgment may be reversed and that he may be restored to all things which he has lost by reason thereof.

to

Supersedeas and Citation. We command you that you forbear all further proceedings upon a judgment [describing it], which judgment we have caused to be brought into our supreme court by writ of error; and also that you cite the said appear before our said court, at — on, to show cause, if any there be, why the said judgment should not be reversed, and have you then and there this writ with your doings thereon.

Joinder in Error. And the said

comes and says that in the record and proceedings aforesaid there is no error; wherefore he prays that the said judgment may be affirmed, and that his costs may be adjudged to him.

If a defective transcript be returned from the court below, upon a suggestion of that fact specifying the defects, the court will issue a certiorari, commanding the court below to supply the defects.

(b) The Code provides very efficient means in aid of execution, when no property can be found to levy upon. An order may be obtained for examining the debtor himself, and any other witnesses, which examination may extend to all the debtor's means, of every description whatsoever; and if any thing be discovered, it must be subjected to the satisfaction of the judgment. § 458-76. Union Bank of Rochester

v. Union Bank of Sandusky, 6 Ohio State, 254. For provisions where the goods levied on are claimed by a third person, see act of March 10, 1860, amending the Code.

writ, he must either pay the judgment, or take the benefit of the insolvent act, or go to jail, where he may have the benefit of prison. limits; all of which have been sufficiently described; and the general doctrine is, that an arrest upon this writ, which is the highest remedy known to the law, precludes a resort to the other, whether it result in satisfaction or not. But this is altered by our statute, where one who has property takes the benefit of prison limits. (a) 2. The writ against the property is called a fieri facias et levari facias, or fi. fa. et lev. fa. It is properly a combination of two writs, the fi. fa. being directed against personal property, and the lev. fa. against real property. It commands the sheriff to cause the amount of the judgment to be made first out of the personalty of the debtor, and for want thereof, out of his realty. Accordingly, if the sheriff can find no personal property, he endorses on the writ "no goods" and proceeds to levy upon the land. When goods are levied upon, they are sold at public auction, without appraisement, unless the judgment debtor demands it, on ten days' notice: and there are a few articles of small value, including necessary articles of household furniture, and tools or utensils of trade, which are specially exempted from execution, under all circumstances; but I shall not take up time in enumerating them. When land is levied upon, it must be appraised by three disinterested persons under oath; the notice must be thirty days; and the land cannot be sold for less than two-thirds of its appraised value, lest the judgment debtor be injured by a sacrifice. The mode of proceeding in the sale of land has been sufficiently described in a former lecture. If the judgment debtor have no property, personal or real, which can be levied upon, special provision is made for a proceeding in chancery against the debtor's unleviable means, which will be described hereafter. (b)

(a) Form of a ca. sa. We command you that you take , and him safely keep, so that you have his body before our court of - on the first day of their next term to satisfy for the sum of $ which by the judgment [or decree] term, in the year recovered -, together with the interest thereon from [date of

of our said court at their

against the said

one

judgment or decree]; and have you then and there this writ with your doings thereon.

(b) Form of a fi fa, et lev. fa. the goods and chattels of decree] of our court of recovered against the said

We command you that you cause to be levied of the sum of $ -, which by the judgment [or -, at their term in the year with interest thereon from

one

; and for want

-, on the

of goods and chattels, that you cause the same to be levied of the lands and tenements of the said ; and have that money before our court of first day of their next term to render under the said there this writ with your doings thereon.

; and have you then and

If goods or land remain unsold for want of bidders, or other cause, the venditioni exponas is as follows: We command you that those goods and chattels [or lands and tenements] of —, which you, according to our command, lately took into your hands, and which remain unsold, you expose to sale, to satisfy, &c. [describe judgment as above]. In Ohio, a homestead to the value of five hundred dollars is exempted from sale on execution, and the head of a family having no homestead, his personal property to the amount of three hundred dollars in addition to chattel property otherwise exempt, is also exempted from such sale. Act of March 23. 1850; Act of March 27, 1858. As to the construction of the act of March 23, 1850, see

Costs. The judges are compensated, as we have seen, by salaries paid out of the public treasury: but the other officers of court, together with the jurors and witnesses, are compensated by specific fees, prescribed by law; and these fees constitute the costs of court; which the suitors are required to pay. The theory is, that each party pays his own costs as they accrue, for each particular service. rendered; and it would be well to enforce this in practice, because much frivolous litigation would be thereby avoided; but instead of this, costs are seldom paid until the final termination of the suit. In either case, the general rule is, that they ultimately fall upon the losing party, as a regular incident to the judgment. If, therefore, they have been paid as they accrued, the winning party recovers his part back, together with the damages; if not, the whole are collected on execution from the losing party, together with the damages; so that in either case, the loser pays the whole if he has the means; if not, the winner must pay his part, and the officers must lose the rest, as a just punishment for not demanding them on rendering the service. We have seen, however, that in the course of proceedings, divers interlocutory orders are made, in which the payment of certain particular costs by one of the parties is made the condition upon which some privilege, as amendment, continuance, and the like, is allowed by the court; but these are only exceptions to the general rule before stated.

Complete Record. (a) After the final termination of a suit in

Burgess v. Everett, 9 Ohio State, 425. As to the notice required in the sale of land, on execution, see act of April 6, 1859, amending section 436 of the Code. As to the duty of the officer in making a levy where certain articles are exempted, see Frost v. Shaw, 3 Ohio State, 270. As to construction of law securing to married women property of the husband exempt from execution, see Slanker v. Beardsley, 9 Ohio State, 589. This act securing to married women the property of their husbands exempt from execution was repealed April 3, 1861. See note at end of chapter on Husband and Wife.

of which

In ejectment, the execution, in addition to the collection of damages and costs, orders the plaintiff to be put in possession of the land. This is called a writ of haberi facias possessionem, and is as follows: Whereas, John Doe, on the, in our court -, recovered, against his term yet to come in [describe the premises], had demised to the said John Doe, for a term not yet expired; and also the sum of $ for his damages, and $ for his costs; therefore we command you, that without delay you cause the said John Doe to have possession of his said term yet to come in the lands and tenements aforesaid; and that you cause to be levied, &c. [as before.]

(a) Form of a Record. Pleas before the court of of, and State of

on the

within and for the county [date of the final judgment]. Be it sued out of the clerk's against one -, to wit:

one

remembered, that heretofore, to wit, on the office of the court aforesaid, the following writ of [here copy the writ]. Upon which writ was the following indorsement, to wit: [here copy the indorsement]. And afterwards, to wit, on the, the said writ was returned to the court aforesaid by said sheriff, indorsed as follows, to wit: [here copy the return]. And afterwards, to wit, on the ——————, the following recognizance of special bail was entered into, to wit: [here copy the recognizance]. And afterwards, to wit, on the - the said filed in the said clerk's office the following declaration, to wit: [here copy the declaration]. And afterwards, to wit, on the filed in the said clerk's office the following plea, to wit: [here copy the plea). And afterwards, to wit, on the, this cause was continued until the next term of said court. And afterwards, to wit, on the, before the said court, came as well the said

the said

as the said

by their attorneys aforesaid, and thereupon