On appeal from the Essex County Circuit Court.
For the appellant, Louis Auerbacher, Jr.
For the respondent, Winard & Winard (Herman Winard, of counsel).
The opinion of the court was delivered by
THOMPSON, J. This is an appeal from an order of the Essex County Circuit Court, determining that the writ of execution issued by one Walton is prior to the writ of execution issued by one McLeod, both writs of execution having been delivered on the same day to the sheriff of Essex County in separate actions by different plaintiffs against the same judgment debtor. The order was entered after hearing on rules to show cause and testimony taken thereon,
It appears from the record that the appellant and respondent herein both secured judgments against Richard Hillier in the Essex County Circuit Court, the appellant's judgment having been first in order of time. Writs of execution were issued out of the Essex County Circuit Court on both judgments on February 27th, 1941. Both writs were duly recorded in the Essex County clerk's office and from there sent to and received at the office of the sheriff of Essex County on the same day, February 27th, 1941. For convenience the appellant's writ will be herein denoted as the McLeod execution, and the respondent's writ as the Walton execution. The practice in the sheriff's office in connection with the receipts of writs of execution there delivered was to endorse on each writ by a mechanical date and time stamp the date and time of day the writ is received in the office. It was testified in this case by Oliver Werkheiser, executive clerk of the sheriff's office and in charge of writs of execution directed to the sheriff, that the stamp endorsements on both writs indicate that both show the stamp imprint of Febraury 27th, 3:45 P.M., 1941, but that in the Walton execution the figure 5 is not even with the figures 3 and 4 but "a little higher up;" and that in the McLeod execution "the figure 5 of the 3:45 is even with the 3 and the 4;" and that, the machine being
operated by clock mechanism, and the numbers go down in front and up in back, "the execution in which the 5 is higher than the other two numerals is the one that was marked first," and that was the Walton execution. In other words, the two documents were passed through the time-date machine, one following the other, with a slight intervening of time, almost imperceptible, yet with sufficient variation in the relative location of the figure 5 with respect to the other figures to indicate which one preceded the other in point of time, however slight and though perhaps merely a matter of seconds. We think the proof is conclusive as to the order of stamping. The question then is, to what extent such order is determinative of the issue in this case.
The matter of priority of writs of execution is controlled by the statute, R.S. 1937, 2:26-90, 91, 92, 93, which read as follows:
"2:26-90. Time when execution effective. No writ of execution shall bind the property or the goods of the person against whom such writ is sued forth, but from the time that such writ shall be delivered to the sheriff, undersheriff, coroner or other officer, his deputy or agent, to be executed."
"2:26-91. Indorsement on writs of you and day of receipt thereof by officer. In order to show the time when writs of execution against the goods only or against the goods and chattels and the real estate of the person against whom such writs are sued forth are delivered to the sheriff, undersheriff, coroner or other officer, his deputy or agent, to be executed, such officer, his deputy or agent, shall, upon the receipt of any such writ, indorse thereon, without fee for so doing, the day of the month and year when he received the same."
"2:26-92. Priorities between executions against goods and chattels of same person issued on same day. If two or more writs of execution shall be delivered against the goods and chattels of the same person on the same day, the one first delivered shall be first executed and satisfied."
"2.26-93. Priorities among executions against real estate of same person. Where several writs of execution shall be issued against the goods and chattels and real estate of the same person, and ...