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show upon answer of nul tiel record that the court had no jurisdiction of the person or the subject matter, or that there was fraud in obtaining the judgment. But under the code, the facts showing the want of jurisdiction should be set forth. Notwithstanding, then, this single judgment of the supreme court, sanctioned, perhaps, by another case, where the question was not involved; and although the doctrine has never been questioned in that court, yet as it is a question in which the decisions of the supreme court of the United States must be regarded as controlling authority, it must be expected that the contrary doctrine, maintained by it with such persistency and ability as are manifested in the opinions cited in a previous note, will, sooner or later, prevail in this state, as it does already in others. It may then be said, as a general rule, that to an action upon the judgment of a court of a foreign state, and of courts of another state in the union, in addition to all defenses which have arisen since the rendition of the judgment, and others which are com mon to foreign and domestic judgments, and which were considered in a former section, the want of jurisdiction of the person, or the subject matter, however asserted in the record, or fraud in obtaining the judgment, may be pleaded and proved as a defense. And this, notwithstanding the exception already noted. But until this case is overruled, the inferior courts are bound to hold that where the record of a judgment of the court of a sister state shows upon its face jurisdiction of the person of the defendant, such record is conclusive, and the contrary cannot be alleged and proved as a defense to the action.

$36. Relief from a judgment obtained against a party through his mistake, inadvertence, surprise or excusable neglect, where and how obtained. The relief provided by the code, in this class of cases, is obtained by an application by motion in writing, or upon a regular complaint; it must be applied for within two years, but is a matter of right upon a proper application. The application cannot be made in a case where the party applying appeared to the action, and was present at the trial and de

'Thompson v. Whitman, 13 Wall. 457; Knowles v. Logansport Gaslight Co. 19 id. 58: Pennoyer v. Neff, 5 Otto, 714.

Wiley v. Pratt, 23 Ind. 628.

3 Carleton v. Bickford, 13 Gray, 591. 42 R. S. (1876) 82-3, § 99; Bush v. Bush, 46 Ind. 70.

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termination of the same, but only by a person in whose absence a judgment was taken, or who, by one or some of the means enumerated at the head of this section, had judgment rendered against him without his being able, when present, to have a formal prosecution or defense of the same.1 No special diligence is required, but the party may file his application at any time within the two years. The application should be made by written motion, verified, or by complaint, verified, which is the more regular method, and the opposite party may be brought into court by notice, as the proceeding is in no sense an action, and if the application is made in term time, of the term at which judgment was rendered, no notice is required. The complaint or motion should show in detail the facts upon which he bases the application; that is, the circumstances of mistake, inadvertence, surprise or excusable negligence on which he relies, and that he has a meritorious defense. The application is tried by the court without further pleadings and without a jury, and may be maintained by the applicant by affidavits, depositions or oral testimony, and upon the grounds upon which the application is based, it may be controverted by counter affidavits, depositions, or oral testimony, but on the question of the alleged meritorious defense, no counter testimony is allowed, but this rests alone upon the affidavit of the applicant.

1Nelson v. Johnson, 18 Ind. 329. "Bush v. Bush, 46 Ind. 70.

3 Buck v. Havens, 40 Ind. 221.

§ 1. Introductory.

CHAPTER XI.

OF EXECUTIONS.

2. Executions at the common law. General definition.

3. Executions under the chancery practice.

4. Executions under the civil code of Indiana. The several kinds enumerated

and defined.

5. The issuance and requisites of the several kinds of execution. Duties of

the clerk.

6. Reviving judgments and issuing executions after ten years from the rendition of the judgment.

7. How execution is obtained against joint debtors.

8. How the real estate of deceased debtors is subjected to execution.

9. What personal property is subject to execution.

10. The duties of the sheriff in the levying of an execution.

11. Property exempt from levy and sale on execution. The mode of obtaining the advantage of the exemption law.

12. Of the lien of executions upon personal property.

13. The custody and care of personal property taken on execution by the sheriff. Taking a delivery bond.

14. Of the appraisement of property taken on execution.

15. Of the sale of personal property on execution.

16. Of the completion of the sale of personal property sold on execution, and

the purchaser's title thereto.

17. Proceedings of the sheriff in case of failure to sell property levied upon. 18. Lands subject to levy and sale on execution.

19. Of the levy of an execution upon real estate.

20. Of the advertisement preparatory to the sale of real estate upon execution. 21. Sale of real estate upon execution.

22. Of sales of lands upon execution.

23. Duty of sheriff in sales upon several executions.

24. The completion of the sale - the payment of the money by the purchaser

1 and the issuance of the certificate.

25. Proceeding where the purchaser fails to complete his purchase.

26. Redemption of real estate from sheriff's sale.

27. The sheriff's deed and its effect.

28. Of the distribution of the money made upon a single execution.

29. Of the distribution of the money collected upon several executions against

the same debtor.

30. The sheriff's return upon execution.

31. Of the stay of execution by the entry of replevin bail.

32. Executions against the body.

§ 33. Of the discharge of the debtor from custody in a case where his body is taken in execution.

34. Of quashing or setting aside an execution.

35. The time and manner of making the motion to quash an execution. 36. The effect and consequences of the quashing of an execution.

37. Of proceedings supplementary to execution. Introductory section.

38. The nature and general purpose of the proceeding.

39. The steps necessary to authorize the institution of the proceeding in each of the cases enumerated in the last section.

40. The nature of the proceeding and the parties thereto.

41. The complaint in the proceeding.

42. Of the order to be issued against the defendant or his debtor, and the lien thereof.

43. Of the pleadings, the hearing and judgment, and its enforcement.

$1. Introductory. Having traced the several steps in a civil action, from the commencement, by the filing of the complaint and the issuance of the summons, down to the rendition of the final judgment, and having shown that the same determines the action, it might well appear that the object of this part of this treatise is accomplished, but, as the final judgment still leaves the prevailing party without the fruition of his success in the action, no treatise upon practice is perfect which does not point out the manner of enforcing final judgments or decrees by execution. And although an execution is properly no part of the proceedings in the action, yet, as it immediately follows the final judgment, the appropriate place for its discussion seems to be immediately following the chapter on judgments.

§2. Executions at the common law; general definition. An execution is the writ which authorizes the proper officer to carry into effect the final judgment of the court.1 At the common law, the principal writs of execution were the fieri facias, which was against the goods, capias ad satisfaciendum, against the body, and elegit, against the lands of the defendant, to which were added the writ of retorno habendum, for the return of goods in replevin. In addition, was the writ of habere facias possessionem, or the writ for the possession of lands.3

83. Executions under the chancery practice. Until a comparatively recent date, decrees in chancery in England could 'Bouv. Law. Dict. 495; Tidd's Prac. 993.

2 Id.

3 Tidd's Prac. 994.

only be enforced by process of contempt; that is, by attaching and punishing the defendant for his contempt, on failure to comply with the decree of the court, and by sequestration of his property until he should comply with the decree. But, by act of parliament, the process of fieri facias and elegit were adopted from the common law practice, in cases where they were appli cable, in addition to the other proceedings.1 And the like proceedings were adopted in Indiana to enforce decrees in chancery for the payment of money, or for the delivery of the possession of property. But where the decree directed the doing of some specific thing, such as making a conveyance, or delivering up documents or the like, upon failure, the decree was enforced by attachment or sequestration, as under the English practice in chancery.

§4. Executions under the civil code in Indiana; the several kinds enumerated and defined. There are three kinds of executions under the code: 1. Against the property of the judgment debtor, real and personal. 2. Against his body. 3. For the delivery of the possession of real or personal property, or such delivery with damages for the detention of the same.1 In addition to the first and second modes of enforcing the payment of money by execution, is the mode of executing the decree of foreclosure of a mortgage. This is a certified copy of the decree, issued by the clerk under the seal of the court, and it has all the effect of an execution under the former practice in chancery, as modified by our statutes. Where a judgment is not for the recovery of money, or real or personal property, but requires the performance of some other act, a certified copy of the same, under the seal of the court, may be served upon the party against whom it was rendered, or upon the person or officer who is required thereby, or by law, to obey the same, and his obedience thereto may be enforced; if he refuse, he may be punished for contempt, and this provision is, in substance, the equity practice in like cases, sequestration never having prevailed in this state. The execution against the property is the

1 Daniels' Ch. Prac. 1246.
R. S. (1843) ch. 46, §§ 90, 96.
* Id. §§ 94, 95.

42 R. S. (1876) 198, § 407.
52 R. S. (1876) 263, § 635.
2 R. S. (1876) 198, § 407.

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