Opinion
16287.
SEPTEMBER 14, 1948.
Affidavit of illegality. Before Judge Crow. Mitchell Superior Court. April 12, 1948.
Robert B. Culpepper, for plaintiff.
Where a judgment awarded alimony to a wife for the benefit of her minor daughter, an execution in favor of the wife individually did not follow the judgment, and accordingly, before being required to pay such execution, the husband was entitled to have it amended so as to show that the execution issued in the name of the wife for the benefit of her minor child, instead of in her individual capacity.
No. 16287. SEPTEMBER 14, 1948.
Mrs. Sara Hilliard Jackson filed in Mitchell Superior Court against her husband, Tom S. Jackson Jr., a petition for divorce and alimony for herself and minor daughter. At the April term, 1941, the jury granted the wife a divorce and awarded her $20 per month as permanent alimony, and also $40 per month to be paid to her for the support of Elizabeth Ann Jackson until she married or became of age. The husband's motion for new trial was granted in so far as it related to the verdict finding permanent alimony for the wife individually, and when this issue was resubmitted to a jury they found for the husband.
On March 4, 1948, the wife filed with the clerk of the superior court a petition in the form of an affidavit, setting up that at the April term, 1941, a judgment was rendered in her behalf for the benefit of her minor daughter, and against her husband, which judgment called for the payment of $40 per month for the support of the minor daughter, and that there was due the wife thereunder $3160, and asking that an execution be issued therefor. The clerk of the superior court issued an execution for the above amount in favor of the wife individually, which was levied against property of the husband.
The husband filed an affidavit of illegality setting up that the execution was proceeding illegally, for the reason that the same was not based on any valid judgment rendered in favor of the wife individually. When this issue came on for trial the illegality was dismissed, on motion of the wife, as being insufficient in law, and the levy was ordered to proceed.
The husband by direct bill of exceptions assigns error on the above judgment, and insists that the execution should have been issued in the name of the wife for the use and benefit of her minor child, rather than in her individual name, and therefore the execution is proceeding illegally because, if he should satisfy the execution issued in the name of the wife individually, he would do so at the peril of having to satisfy a legal execution which might be issued against him in the name of the wife for the benefit of her minor daughter, or one that might be issued in the name of the daughter after she reached her majority.
(After stating the foregoing facts.) Counsel for plaintiff in error states in his brief that the husband does not question the verdict or judgment awarding alimony for the support of his minor child, or the right of the clerk of the superior court to issue an execution thereon, but that he is only seeking to have the execution properly worded. He insists in this connection that the execution should have been issued in the name of the wife for the use and benefit of her minor daughter, instead of in the name of the wife in her individual capacity.
"All executions shall follow the judgment upon which they issued, and shall describe the parties thereto as described in such judgment." Code, § 39-104. "A fieri facias may be amended so as to conform to the judgment upon which it issued, . . . and such amendments shall in no manner affect the validity of the fieri facias, nor shall the levy of said fieri facias fall or be in any manner invalidated thereby." § 39-109. When the clerk of any court shall make a mistake in issuing an execution, he may correct such mistake by amending the execution. § 39-111.
The execution in the present case, which was issued in the name of the wife in her individual capacity, did not follow the judgment or the affidavit filed by the wife with the clerk of the superior court. While the execution referred to the judgment that was rendered against the husband in April, 1941, nevertheless there is nothing on the face of the execution to show that the award of permanent alimony was made for the use and benefit of the minor daughter.
Under the provisions of the above-quoted Code sections, the husband was entitled to have the execution amended so as to make it follow the judgment before being compelled to pay the same, and accordingly, since this is the only relief he is seeking, the judgment dismissing his affidavit of illegality is affirmed on condition that the wife shall within twenty days cause the clerk of the superior court to amend the execution so as to make it show that it issued in the name of the wife for the benefit of her minor daughter; otherwise, the judgment is to stand reversed.
Judgment affirmed on condition. All the Justices concur, except Bell, J., absent on account of illness.