Otho O. Otwell v. George A. Messick

Otho O. Otwell v. George A. Messick. If a judgment be entered on a note payable at a future day by virtue of a warrant for that purpose, but without stay of execution, and execution is issued thereon before the note is payable, and exception is thereupon taken both to the judgment and the execution, the court will allow the former to be withdrawn, and will set aside the execution simply. Certiorari. The judgment in the case had been entered on a note under seal with a warrant to any j ustice of the peace to enter judgment up'on it, but the note was by its terms made payable at a future day, and before that day judgment was entered generally upon it without any stay of execution, and before that day also execution had been issued upon it. One exception was that no stay of execution was granted or mentioned in the entry of the judgment although it appeared from it that the note was not payable until after the entry of it; and another exception was to the execution merely, because it had been issued before the debt or judgment either was properly payable. [MAJORITY — The Court,] The Court, on recurring to sec. 11, Chap. 114, Rev. Code Amend. 695, as to the costs on a certiorari in such a case, gave the plaintiff léave to amend by withdrawing the former exception, which was to the judgment alone, and directed a judgment to be entered in his favor on the latter, setting aside the execution simply, as the stay of payment on the note had in the meanwhile expired.