Burke v. Levy's executors

Decided November 15, 1821

Supreme Court of Virginia · decided 1821-11-15

This was an appeal from the superior court of law for Richmond county. The appellee made a motion against the appellant and his surety on a forthcoming bond, which recited the execution with the legal costs attending the same, as amounting to 2.041. 11s. 2d.; but the execution itself is not made part of the record by bill of exceptions, nor does it appear that any objection was made in the court below to any excess in the judgment beyond the amount due by the execution.

Relies on Wilkie v. Chandon

Decided 1821-11-15

¶1November 26

Judge Roane,

¶2delivered the opinion of the court:

¶3The court is of opinion, that as the jurisdiction in this case was given to the Superior Court, to proceed by motion in a summary way, although that court might have called in a jury to decide the points submitted by the plea, it was not compellable to do so, under the distinction taken by the court in the case of Watson vs. Alexander.(a)

¶4The court is also of opinion, that although there may still exist an excess in the judgment of the Superior Court beyond the sum due by the execution, yet that execution not having been made a part of the record, by bill of exceptions or otherwise, and no objection having been made to the judgment on this point in the court below, that objection ought not to be now sustained in this court under the case of Bronaughs vs. Freeman. (b)There is no error, therefore, in the judgment, and it is to be affirmed.

¶51 Wash. 356.

¶62 Munf. 266.