¶1This case came before the court below on an affidavit of illegality to an execution. One of the grounds taken in the affidavit of illegality was that the alias execution, which had been levied on the defendant’s land, was dormant. On the hearing of the case, the plaintiff demurred to the defendant’s affidavit of illegality, which demurrer the court sustained, and dismissed the same; whereupon the defendant excepted.
¶2It appears from the record that the judgment on which the execution issued was dated 17th October, 1868. There was a return on the execution of “ no property to be found,” made by the proper officer, on the 3d of November, 1868; but no other entry was made thereon until the levy on the defendant’s land on the 1st of April, 1876, being more than seven years. In our judgment, the court erred in sustaining the demurrer on the statement of facts disclosed in the record. The defendant in error contended in his brief (the case having been submitted here on the briefs of both parties) that the record disclosed the fact, that motions and proceedings were had in court between the parties, which prevented the execution from becoming dormant. There is nothing in the record before us from the court below going to show that any such motions were made, or proceedings had, as insisted on by the defendant in error.
¶3Let the judgment of the court below be reversed.