[No. 947.]

#### WILLIAM SOLEN, Appellant, *v.*VIRGINIA AND TRUCKEE RAILROAD COMPANY, Respondent.

Execution Must Polloav Judgment — Interest.—An execution must follow the judgment, and if the judgment does not call for interest, the execution can not. *(Bastings*v. *Johnson,*1 Nev. 617, affirmed.)

Appeal from the District Court of the First Judicial District, Storey County.

On the thirteenth day of December, 1876, William Solen, appellant, recovered judgment against the Virginia and Truckee Eailroad Company, respondent, for the sum of fifteen thousand dollars, with costs, being the amount of damages assessed by a jury for personal injuries received by appellant. Eespondent appealed to the supreme court, and on the twenty-first day of June, 1878, the judgment of the district court was affirmed. (13 Nev. 106.) The judgment so affirmed contained no direction as to interest.

On the twenty-ninth day of June, 1878, the respondent paid to the clerk of the district court the sum of fifteen thousand dollars, with the costs as docketed in the court below. The court thereupon ordered that execution be *406stayed on said judgment. On the sixth of July, 1878, appellant moved the district court to set aside its order of June 29th, and for an order directing the clerk to issue execution on the judgment, with interest thereon from the entry thereof, at the rate of ten per cent, per annum. The court made an order denying said motion. Appellant appeals from both of said orders.

*O. H. Belknap and Kirkpatrick (& Stephens,*for Appellant.

I. The judgment bears interest from its date at the rate of ten per cent, per annum. (Stat. 1861, p. 99, sec. 4 (1 Comp. Laws 32); *Burke*v. *Caruthers,*31 Cal. 467; *Randolph*v. *Bayue,*44 Id. 366; *Atherton*v. *Bolder,*46 Id. 320; *Clark*v. *Dunnam,*Id. 204; *Dougherty*v. *Miller,*38 Id. 648; *Bell*v. *Knowles,*45 Id. 193; 5 Dana, 466; 6 B. Mon. 197; *Berryhill*v. *Wells,*5 Bin. 56.)

*Whitman & Wood,*for Bespondent.

I. The judgment was satisfied by the payment of money into court.

II. Execution must follow the judgment. *(Hastings*v. *Johnson,*1 Nev. 613.)

By the Court,

Hawley, J.:

The decision in *Hastings*v. *Johnson,*1 Nev. 617, is directly in point, and adverse to the views contended for by appellant, upon the real question presented by this appeal.

It was therein decided that where the judgment of the court is silent as regards the collection of interest, it does not authorize the issuance of an execution calling for payment of interest on the judgment; that the execution must follow the judgment, and if the judgment does not call for interest, the execution can not.

Upon the authority of that case, I think the orders appealed from ought to be sustained. It is so ordered.

LEONARD, J.,

concurring:

I concur in this opinion solely upon the ground stated by the court, that we are bound by the decision in *Hastings*v. *407*Johnson.*If tbe question decided by tbe majority of tbe court in that case was now presented for tbe first time, I could not agree with tbe conclusion arrived at. But tbe record in that case fairly presented tbe question decided by tbe majority, as well as tbe one upon wbicb all agreed. Sucb being tbe case, tbe decision cannot be regarded as *obiter (Starr*v. *Stark,*2 Sawyer, 605); and under tbe doctrine of *stare decisis*should be adhered to.