¶1We are of the opinion the certiorari should not be dismissed.
¶2In the cases cited by counsel for the motion the writ of certiorari was issued for the purpose of setting aside the judgment, but in this case the object of the writ is to set aside the execution only, as was done in Spear v. Hill. We decline to dismiss the writ. It appearing from the record that there was not a judgment upon which an execution could issue, execution issued in this case is vacated and set aside.