Hunter v. Kirk, 11 N.C. 277, 4 Hawks 277 (1826)

June 1826 · Supreme Court of North Carolina

11 N.C. 277, 4 Hawks 277

Hunter v. Kirk,

From Mecklenburg.

’The return of a Sheriff of the service of a writ is made upon oath, and cannot be contradicted by the Defendant’s affidavit that the writ was not served. When however a Defendant, against whom a judgment by default had been rendered, obtained a Certiorari, and swore that the writ had never been served, and that he had a good defence, the Certiorari will not be dismissed, but a new trial shall be had. 1

Kirk sued out a writ against Hunter, the Plaintiff, returnable to August Term, 1824, of Mecklenburg County Court. The Sheriff returned this writ “ executed,” and. a judgment by default was taken. At the next term thereafter a writ of enquiry was executed, and the Juryas-sessed Plaintiff’s damages to §81-and costs. An execution issued thereon, and was returned satisfied.

On the 30th of March, 1826, Hunter sued out a writ of*Certiorari to Mecklenburg Superior Court, and when the cause came on to be heard before Dantbx Judge, the affidavit of Hunter was read, stating that the writ never was served on him, and further, that he believed he had a good defence, but could not avail himself of it before, because he was ignorant that there was any suit pending against him. — The affidavit of the Sheriff was also read, stating, that to the best of his knowledge the writ was served, and that he never had returned any writ as executed by himself which he had not actually served.

Judge Daniee dismissed the Certiorari, and ordered a Procedendo to the Court below — whereupon, Hunter appealed.

Hale Judge,

delivered the Court’s opinion.

Although the Sheriff does not swear positively to the execution of the process, yet he states that he verily believes he did execute it. Indeed he is a sworn officer* and his return cannot be contradicted by the Defendant’s affidavit.

But the Defendant states, that he believes he has a good defence to make, on behalf of his intestate, that he did not make it, because he was ignorant that any suit was depending against him. — I think the ends of justice would be better answered by granting a new trial, than by dismissing the Certiorari.

We are therefore of opinion, that a new trial should be granted.

Judgment reversed,