Gowan v. Gentry

Citations

• 32 S.C. 369
• 11 S.E. 82
• 1890 S.C. LEXIS 57

Syllabus

<p>1. Assignees of a legacy brought action against the executors alleging an amount in their hands more than sufficient to pay this legacy and demanding judgment therefor. The executors made default. After reference had and report made, the judge ordered defendants to pay to plaintiffs the amount due to them out of this legacy, with costs. Judgment was entered up on a blank form which was imperfectly filled up, and signed, but not sealed, by the clerk. Execution de bonis testatoris was issued, and two years later an alias execution de bonis propriis, under which a levy was made upon the individual property of the executors, which they, by this action, sought to enjoin. Held, that the ■ irregularity in the judgment formula might be corrected by amendment. Mr. Chief Justice Simpson, dissenting.</p> <p>2. Was the second execution de bonis propriis sufficiently supported by the order of the Circuit Judge without regard to the judgment formula, and without a second action establishing a devastavit? Mr. Justice McGowan thought it was, Me. Chief Justice Simpson thought it was not, and Mr. Justice McIver reserved his opinion.</p>