Leontine J. McWhorter, d. b. a., vs. James H. S. Gam, p. b. r.

Leontine J. McWhorter, d. b. a., vs. James H. S. Gam, p. b. r. New Castle County, May Term, 1896, Juctice Of the Peace. Judgment. Appeal.—where a judgment had been entered by a Justice of the Peace, execution issued and a levy made, the judgment opened for a hearing and the return of referees made of the amount due on the judgment, an appeal will not lie from such finding. Same.—In such. case the levy stands as security for what is found due on the judgment. In 1891 judgment was entered in favor of plaintiff below before a Justice of the Peace in said county on a judgment note for $150.00, with warrant of attorney. In 1895 execution was issued; and levy made thereunder. The defendant under the provisions-of Section 12, Chap. 99 of the Revised Code (1893) filed an affidavit with the Justice stating that there was nothing due upon the judgement. Whereupon the Justice awarded a referee trial to determine whether the judgment had been paid. The referees returned that $50.00 was still due on the judgment. On that return of the referees, the defendant, McWhorter, took an appeal to the Superior Court. Motion by Gam, through his counsel, Mr. Cooper, to dismiss the appeal on the ground that it does not lie, under the statute. P. L. Cooper, Jr., for plaintiff below. J. H. Rodney, for defendant below. [MAJORITY — Lore, C. J.,] Lore, C. J., delivered the opinion of the Court. In the case at bar, judgment had been entered, execution issued and the levy made thereunder. At the time the judgment was opened for a hearing it was found that there was due on the judgment and unpaid $50.00; and the statute expressly provides that where an execution has been levied, as in this case, “ levy shall be a security for what shall be found due the plaintiff upon the judgment.” Rev. Code, p. 746. The judgment, therefore, is not vacated, but the amount due thereunder is ascertained. If the judgment was vacated, the execution based upon it would fall, and with it the lien.of the party, when the act provides in such cases that “the judgment and execution shall stand, unless the defendant give security.” Ringgold vs. Griffin, 1 Harring. 224. The appeal is therefore dismissed.