Dowdle v. Stalcup, 25 N.C. 45, 3 Ired. 45 (1842)

Dec. 1842 · Supreme Court of North Carolina

25 N.C. 45, 3 Ired. 45

EZEKIEL DOWDLE vs. WILLIAM STALCUP.

December 1842.

It is not necessary that the transcript of a record, containing the copyof an execution, should set forth that there was a seal to the execution.

Besides, if such an objection would lie, it should have been taken when the record was offered in evidence, and is too late on a motion for a ncjv trial.

■ Appeal from the Superior Court of Raw of Macon county, at Fail Term, 1842, his Honor Judge Pearson presiding-.

This was an action of Trover for a horse. After the jury were impannelled, the plaintiff’s counsel stated, that he was surprized by the fact that a record from Burke Superior Court, which he expected to- offer in evidence, had no seal to the Clerk’s certificate, or the seal was too indistinct to be identified, and intimated an intention to submit to a nonsuit. Thereupon, the defendant’s counsel consented that the re' cord might be read without objection for want of a seal. The record was read, and shewed a judgment against one Brit-tain, and an execution thereon against the property of Brit-tain, directed to the Sheriff of Macon, and an order for one Howell, the Sheriff of Haywood, to execute it, under the act of Assembly. A verdict was found for the plaintiff. A motion was made by defendant’s counsel for a new trial, on the ground, that it did not appear from the record read in evidence, that the execution under which Howell sold had a seal to it. The court refused to grant a new trial, because the objection had not been taken or noticed until after the trial, and for other reasons. Judgment was rendered for the plaintiff pursuant to the verdict, and the defendant appealed.

Glingman for the plaintiff.

Francis for the defendant.

Daniel, J.

This was an action of Trover, tried in Ma-Con Superior Court. The plaintiff deduced his title to the in controversy, under a purchase at a Sheriff's sale of the property of one B. Brittain. He produced a transcript a rec01'd of a judgment obtained in - Court of Burke against Brittain, and an execution issued on the same to the Sheriff of Macon, under which execution he purchased the horse. The plaintiff obtained a verdict. The defendant moved for a new trial, because the court permitted the transcript oí the record of the execution to be read in evidence, when it did not appear by the same that there had been a seal of Burke Court affixed to the original execution. The court overruled the motion, and, we think, very properly. The transcript of the record of Burke was proper evidence; the seal to the original execution, (when the execution is proved by a transcript,) must •prima facie be presumed to have been affixed, as the record, from which the transcript is taken, never contains a fac simile of the seal; and, besides, had there been such an objection as that insisted on by the defendant, it was incumbent on him to make it upon the trial. It is too late for him to raise it upon a motion for a new trial.

Pee Cukxam. Judgment affirmed.