October 5, 2012

Fish v. The Simmermans, Rockcastle, 1827

Fish vs. The Simmermans.

COURT OF APPEALS OF KENTUCKY

21 Ky. 81; 1827 Ky. LEXIS 105; 5 T.B. Mon. 81

June 5, 1827, Decided

PRIOR HISTORY:  [**1]  Error to the Rockcastle circuit: JOSEPH EVE, Judge.

DISPOSITION: Judgment reversed, with cost, cause remanded.

COUNSEL: Robertson, for plaintiff; Caperton, for defendant.

JUDGES: Judge OWSLEY.

OPINION BY: OWSLEY

OPINION

 [*81]  Judge OWSLEY delivered the Opinion of the Court.

THERE is in this case one point decisive against the judgment. The proceeding was against Fish, by motion, for his failure, as late sheriff of Rockcastle, to return within a month from the return day, an execution issued in favor of the  [*82]  Simmermans &c.and which was put into his hands for collection. The motion was made in pursuance to a notice which was not served upon Fish until the month of March, 1824; before which time, more than two years from the return day of the execution had elapsed; and by the act of January, 1811, no motion for a failure to return an execution can be maintained, against a sheriff, after the lapse of two years from the return day, unless in particular cases excepted by the act, within none of which exceptions is this case brought. After the time limited by the act, the motion ought not therefore to have been sustained against Fish. The judgment must therefore be reversed, with cost, the cause remanded [**2]  to to the court below, and judgment entered in bar of the motion, &c.

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