
    Thomas Earl’s Lessee v. Jacob F. Shoulder.
    Proofs other than memorandums in writing on the minutes of tho court of common pleas, to show that a mandate to carry a judgment of the Supreme Court was issued, admissible. An execution issued upon it, and a levy made on such execution, may he submitted to a jury, and the- fact? may he rightfully so found on such proofs.
    Good practice requires of the clerk of the Supreme Court to add to the final record of appeal causes the order for a mandate to court of common pleas; and of the latter clerk to minute on the journal the judgment of the Supreme Court, the receipt of the mandate, and the order for execution.
    Where facts are disclosed on a motion for a new trial, affirming the correctness of the verdict, a new trial ought not to be granted, whatever errors may have intervened.
    Answer in chancery, by a defendant in ejectment, in a chancery case on the same subject, is admissible as proof of his declaration.
    This was an action of ejectment in the county of Ross. Yerdict for the plaintiff, and a motion for anew trial, which was adjourned for decision here.. Judge Wright thus stated the case:
    On trial the plaintiff offered the following evidence to the court and jury :
    1. The record of a judgment in the Supreme Court, in favor of Harris v. John Carlisle, in a case brought into that court by appeal from the court of common pleas, rendered at December term, 1822.
    2.. The clerk of the court testified that the execution which issued upon that judgment, was brought into court and used in evidence on the trial of this cause in the common pleas, but he has since been unable to find it.
    An entry of the execution docket of the court of common pleas was then read of the issue of an execution in a case of Harris v. J. Carlisle, on a judgment for the same amount and of the same date with that in the record from the Supreme Court; an entry, also, of the return on the execution of land sold to W. H. Douglass, made in 1825.
    Tarleton testified that he was sheriff in 1825, etc., and had the execution described in the entry in his hands; that he levied [410 on the land in dispute, had it appraised and advertised, sold it to W. H. Douglass, and returned it, with his proceedings thereon, to the court.
    3. An order of the court of common pleas, made at the March term, 1828, reciting the writ and the sale, confirming the sale as having been made in all things in conformity with the law, and ordering the sheriff to make a deed to the purchaser.
    4. A deed from Tarleton, sheriff, to W. H. Douglass, dated March 13, 1828, which recites a judgment in the Supreme Court on appeal, the mandate to the common pleas, and order of execution thereon also the execution, levy, and sale.
    5. Deed, W. H. Douglass to Wallace, dated November 14,1831.
    6. Deed, Wallace to the lessor of the plaintiff, December 5, 1831.
    7. Deed, Massie to Rogers for the same land, defectively executed.
    8. Deed, Rogers to Andrew and John Carlisle.
    9. The record of a chancery suit by the Heirs of Andrew Car-lisle v. Harris, J. Carlisle, and W. H. Douglass, setting forth the recovery of the judgment in the Supreme Court by Harris v. J. Carlisle, that it was certified to the court of common pleas, with a mandate to carry the same into execution, the issue of an execution under the mandate, the levy on the land in dispute, and a threat to sell it. The bill alleged the judgment was fraudulent, that Andrew Carlisle paid the purchase money of the land deeded to him and John, from which a trust resulted to the complainants as Andrew’s heirs for the undivided part of the land conveyed to J. Car-lisle, and injunction to stay the sale on the execution. The bill describes the complainant’s title as derived from Rogers to their ancestor and John, and by Rogers from Massie, and that John Carlisle had conveyed the moiety held by him to them. The bill was dismissed.
    The defendant offered in evidence:
    1. The will of Andrew Carlisle devising his interest in the land to A. and W. Carlisle.
    2. A deed, John Carlisle to A. W. Carlisle, under whom the defendant claimed to hold.
    3. He offered a deed of confirmation from Wallace, trustee of Massie’s heirs, to A. and W. Carlisle, dated December 6, 1823, which 411] recites that the former conveyance by Massie to ^Rogers, to have been issued by Massie without patent from the government for the land, and the after deed from Rogers to A. and J. Carlisle, the issue of a patent to Massie’s heirs, granting the land to the devisees of Andrew.
    This deed was objected to by the plaintiff and ruled out, on the ground that the title obtained by Massie’s heirs by the patent to thorn inured to Rogers, the grantee of their ancestor; as both parties made title through Rogers, he was the common source of title, and they could not dispute his title; therefore, the evidence was useless, its only effect being to falsify the title.
    The judge, in giving the cause to the jury, recapitulated this title in evidence, and observed that tiré defendants and plaintiffs both claimed under the deed from Rogers to Andrew and John Carlisle; and, therefore, it was incompetent for them to dispute Rogers’ title. For all the purposes of this trial, that title may be taken as good.
    He said two objections were taken by the defendant to the plaintiff’s title.
    1. The want of authority in the common pleas to issue the execution on a judgment in the Supreme Court, as no mandate from the Supreme Court had been given in evidence.
    2. That there was no sufficient evidence of a levy.
    As to the first objection, the want of a mandate, the law required one to issue, 3 Chase’s Ohio L. 970, and if none was issued, the execution from the court of common pleas was void, and a sale under it could convey no title to the purchaser. But the law did not, 'as supposed, require the mandate or writ oí procedendo to form a part of the record in the cause. It merely required of the Supreme Court to send a mandate to the court of common pleas, to execute its judgments in cases brought up by appeal or on writ of error, and authorizing the court of common pleas to execute judgments as their own. Record evidence of this fact is not, as the defendants urge, absolutely necessary. The mandate and procedendo are process of execution; such process is seldom recorded. The evidence you have, is pertinent to the issue. If the title of the plaintiff or defendant shall depend upon a number of distinct facts, and no proof has been given of some one fact, so connected with others proven, that they could not in reason exist without such fact, the jury may presume the fact to exist. What, then, is the evidence to show you that the Supreme Court sent a transcript of their judgment to the court of common pleas for oxecution ? *The judgment of the Supreme Court is proven [412 —the law requires the court to send such judgment to the court of common pleas for execution. An execution did issue from the court of common pleas in a suit between the same parties, for the like sum — that execution was returned, and came under the inspection of the common pleas; and you have their entry that the proceedings upon it were found in all things conformable to law, confirming them, and ordering a deed. The sheriff made a deed, reciting the fact of the judgment in the Supreme Court, and the mandate; and, finally, you have the same judgment, mandate and execution, affirmed and sworn to in the hill in chancery, filed by the defendants’ landlord to stay the proceedings on the execution. If this evidence satisfy you, the judgment was sent by the Supreme Court to the court of common pleas by mandate for execution, you may find that fact, though the mandate’itself is not produced, and in the absence of a record of its order or receipt.
    Another objection is taken by the defendants’ counsel; it is, that there is no evidence of a levy on this land by the sheriff. A levy is essential to a valid sale. What is the evidence on that point? That an execution issued, and this land was sold on it, the sale was returned, examined by the court, found to conform to the law in all things, was confirmed, a deed ordered and made, reciting the fact of a levy in June, 1825. The execution itself, the return on which would afford you evidence of the levy, is lost. But you have the evidence of the sheriff that he had the execution, and levied it on the land and sold according to law, and the defendants’ landlord in their bill swear there was a levy; but it is said the entry in the order of the court of common pleas confirming the sale, uses the term writ and not execution, or ft. fa., etc. Land can only be taken upon & fieri facias to satisfy a judgment— no other writ can confer upon the officer the power to take and sell land. The entry on the docket is, that execution issued. The sheriff testifies that he had one, and that it was in court on the former trial. You will weigh all this evidence, and give it its common effect, and if, upon the whole, you think it more probable, that the writ, on which this land was sold, was an execution than any other writ; if it render it more probable that there was a levy on the land before it was appraised, advertised, and sold, than that it was disposed of without, you can so find.
    413] *If you find the judgment in the Supreme Court, the mandate to the common pleas, the execution, levy, and conveyance by the sheriff, the plaintiff is entitled to your verdict.
    The jury found for the plaintiff.
    The defendant now moves for a new trial:
    1. Because the verdict is against law and the evidence in the cause.
    
      2. Because the court erred in permitting the jury to presume-a mandate from the court of common pleas and a levy.
    3. That the court gave to the jury an erronepus opinion of the-conclusive character of the proceedings in chancery upon the complainants and those claiming under them.
    The defendants’ counsel have placed on file, since the trial,, the following pápers, to which they invite the attention of the court:
    1. An order of the Supreme Court at December term, 1822, in these words: “ Ordered, that all cases removed into this court from the court of common pleas, in which this court have during the present term entered judgment or pronounced decree, be certified to the court of common pleas, with a special mandate to convey the samé into execution.”
    2. An entry in the court of common pleas at March term, 1823, in these words: “ Ordered, that execution issue on all the mandates or prooedendos, sent down from the Supreme Court at their last term, to this court, on application of the parties.”
    3. A summary transcript under the seal of the Supreme Court, and the attestation of their clerk, of a judgment in that court corresponding in the names, date, and sum, with that described in the sheriff's deed, with this order annexed, “ and the court of common pleas for said county are hereby directed to carry said judgment into effect.”
    Douglas, for a new trial:
    The statute of 1816,18 Ohio L. 411, is as follows: “And the-Supreme Court shall not issue execution in causes that are removed before them by writs of error, oh which they pronounce a judgment or pass a sentence or decree as aforesaid, or on appeals, but shall send a special mandate to the court of common pleas to award execution thereupon, and such court is hereby authorized and required to proceed in such cases in *the same manner as if [414 such judgment or decree had been rendered therein.” What then ought this special mandate to be, on which execution is to be awarded? Why it ought, at least, to give in a summary way the amount of the judgment, with an order (or in the language of the statute, special mandate) of the Supreme Court to the common pleas, to award execution thereon. This ought to be entered upon the journal of the common pleas, and followed by the order of the common pleas awarding execution thereon. Without this there is no judgment in or award of execution from the common pleas, and any proceeding without it is an execution without a judgment, and a party making title under it must give it in evidence, or it will be held the same as if it did not exist. Now, can all this matter be the legitimate subject of presumption? In a transaction of yesterday, with all the evidence, if it exists, at the party’s hand, can it be'presumed for him. Suppose the party had withheld his judgment, could the existence of the execution, sale, and •deed of so recent a date, be facts from which a judgment might be presumed? The judgment of the Supreme Court is no evidence, for the execution is not from that court, it is from the common pleas.
    But no proper mandate was ever sent from the Supreme Court or entered in the common pleas, and no execution has ever been awarded. The paper exhibited contains none of the requisites of a special mandate, and nothing upon which the common ideas could act. It does not appear by it that any order for a mandate was ever entered in the Supreme Court, or that said court ever sent any, or that the common pleas were thereby authorized to award execution. The clerk of the Supreme Court takes it upon himself to direct the common pleas to “ carry such judgment into effect.” All his certificate upon the subject is, “ and that the court of common pleas are hereby directed to carry said judgment into effect” — not a word that the Supreme Court had ever ordered it; besides, what is the meaning of the words, “ to carry said judgment into effect?” The judgment seems to be already canned into effect, for it is a good and effectual judgment in the Supreme Court.
    But suppose this paper were a good and sufficient mandate, what has been done with it ? Neither it nor the case has ever been entered in the common pleas, nay, not even filed there — from aught that appears it may have lain on the files of the Supreme Court, 415] or somewhere else, from that day to this. It *is true that upon the journal of March term, 1823, of Ross common pleas, the following order appears, “Ordered, that execution issue on all the mandates or procedendos sent down from the Supreme Court of this county at their last term, to the court, on application of the parties.” But were this order good for any purpose, can it, by any construction, be made to apply to this case ? Where is the evidence that this case was ever sent down ? It is nowhere entered on the journals, nay, the mandate is not even filed. If the above mandate can be made to apply to this case, it can with equal effect be applied to any ease in the Supreme Court. The extent of its application can only be to such eases as are actually sent down and entered. Such was not the fact with this.
    It is likewise contended that there was no proof of a levy; the sheriff’s testimony is only to the goodness of his sale, and his return entered on the execution docket says not a word of a levy, although it is usual to enter the whole return; a levy is indispensable to title.
    The court admitted the chancery proceedings and decree as conclusive upon the rights of the younger Carlisles; their attention is respectfully called to a reconsideration of that opinion, and also upon the subject matter of the other testimony and the reasons generally.
    But upon the subject of the execution issuing without any authority, this defendant rests with confidence that a new trial ought to be granted him.
    T. Scott, for the plaintiff, insisted:
    1. That the evidence offered warranted and sustained the verdict.
    2. The charge of the court was correct, sustained by the presumptions raised by law in favor of the correctness of the proceedings of any court of competent and general jurisdiction. 4 Wheat. 213; 2 Ohio; 6 Wheat. 481.
    3. That a new trial ought not to be granted in this case, because it would be of no avail, as the facts presumed by the jury were correct, as is now shown, and would be proved on another trial by written evidence, which the court inspects and construes. In this case there appears evidence enough in each court to warrant an execution.
   *Judge Wright

delivered the opinion of the court:

Nothing is particularly said in the argument upon the first reason assigned for a new trial, and I will pass at once to the consideration of the other two.

As to the mandate and levy, the law was given to the jury in substance as the defendant’s counsel now urges. On review, we see no error in saying to the jury, under all the circumstances, that they might, if they believed that the mandate issued and the levy was made, presume those facts without record evidence.

We have now laid before us the mandate itself, which shows that fact to have been rightly presumed by the jury. We have also copies of the order of the Supreme Court, of December term, 1822, for mandates, and of the entry by the common pleas authorizing the clerk to issue execution in cases sent down from the Supreme Court.

The general order of the Supreme Court is convenient in practice. It would be correct for the clerk, in making up the complete record, to attach to each case from this general entry a particular order to remand to the court of common pleas for execution. That was omitted in the ease before us, but does that vitiate the judgment and mandate? No one will pretend it. The inquiry is, was a mandate issued? If the response to that be affirmative, the law in that respect has been complied with..

It is objected that the transcript, if received, is without a mandate, the law requiring an order to “award execution,” and this mandate is “to carry said judgment into effect.” We do not see how the judgment could be carried into effect without execution, as that was the only writ to coerce satisfaction of it.

It is further urged that the order of the court of common pleas is of no avail, because of its generality; that it can not be construed into an award of execution on this judgment. We agree .that it would be better practice for the clerk of the common pleas to make a special entry in each ease, stating briefly she title of the case, date, and amount of the judgment and mandate, and subjoin an order to issue execution thereon. Such an entry would evidence more care and clerklike precision. But the way this was ■done is the way of doing those things in that court; and are we now to declare all process so issued void ? Certainly not. Courts award execution upon judgments in legal contemplation, when 417] their clerk, who keeps their seal, ^affixes it to the process, ,and issues it on the application of a suitor. When so issued, it is the process of the court or the law, not that of the clerk. It is not usual in making title under execution to seek for an order of the court awarding the writ. The fact of the writ being issued presupposes the order, and renders it useless to produce other proof of its being awarded.

These remarks are made in reference to the orders of the courts and the mandate now exhibited, because they have been discussed. They show that a new trial ought not to be granted for the alleged error of the court, if it existed, because it can do no good. The facts accord with the presumption of the court and jury, and can be proved, if another trial were allowed.

There remains the objection to the charge as it respected the proceedings in chancery. The objection is understood to be that the court thought it incompetent for the defendant to contest the title of Rogers, the source of title common to both. This looks rather more to the rejection of Wallace’s deed than any opinion of the court upon the chancery record. The record was properly admitted, as showing the declaration of the defendants as to the mandate, execution, and levy; and we see no error in the opinion of the court, or in the fact of admitting the evidence.

New trial refused.  