Cody v. Quinn, 28 N.C. 191, 6 Ired. 191 (1845)

Dec. 1845 · Supreme Court of North Carolina

28 N.C. 191, 6 Ired. 191

ARCHIBALD CODY vs. JAMES QUINN.

Where a Sheriff returned an Attachment levied on certain property, and was. afterwards permitted by the Court, to which the Attachment was returned, to amend his return, by stating that the property had been levied on by executions having priority to his Attachment: Held, that he could not be held responsible on his first return — but the record, as amended, must be taken to be true.

Where a writ from a Court of competent jurisdiction is delivered to a Sheriff, he is bound to execute it, according to the exigency of the writ, without inquiring into the regularity of the proceedings, on which the writ is grounded.

Where, after a judgment, a memorandum was made on the docket by the parties, that execution should not issue before a certain day, as this forms no part of the judgment, if the execution issue before that day, no one can complain of it, but the parties. As to all other persons, the execution is not even voidable.

The cases of Smith v. Daniel, 3 Mur. 128, and Dickinson v. Lippet, 5 Ired. 560,‘cited and approved.

Appeal from the Superior Court of Law of Lincoln County, at the Special Term, held ini June, 1845, his Honor Judge Pearson presiding.

This was an action on the case, commenced on the 1st day of July 1842, against the defendant, as Sheriff of Lincoln. Plea, not guilty. The plaintiff, on the 19th day of August, 1839, issued'an original attachment against one True for a debt of $131 80, and placed it in the hands of the defendant, who, on the same day, caused it to be levied on a coach and eight horses, the property of True. The plaintiff obtained a judgment against True on his attachment, at July sessions, 1840, of Lincoln County-Court, and issued a venditioni exponas, tested on the 2d Monday after the 3d Monday in February, 1842, returnable to June sessions, 1842. At this term, the Court permitted the Sheriff to' amend his return on the original attachment, by stating in it, that the levy on the coach and horses was subject to James Patton’s execution against True, tested before the levy under the said attachment.

The coach and horses were sold by the Sheriff, and the proceeds applied to Patton’s execution, which absorbed the whole sum raised by the sale. Patton’s execution was tested of July term, 1839, of Buncombe County Court.

When Patton obtained his judgment, a memorandum was made by consent of parties, “ no fi. fa. to issue until October.” Afte^r the term, there was an addition made by Patton and the Clerk, to the memorandum, in these words: “ until ordered.” These facts being' admitted, the Judge charged the jury, that the plaintiff could not recover. There was a verdict and judgment for the defendant, and the plaintiff appealed.

Guión, for the plaintiff.

Boydén, for the defendant.

D axiel, J.

First: After the amendment, in the'Sheriff’s return to the plaintiff’s attachment against True, was permitted to be made by the County Court of Lincoln, át June Sessions, 1842, (which the Court had a right to permit to be made, Smith v. Daniel, 3 Murphy, 128, Dickinson v. Lippet, 5 Ired. 560,) the record in that case shewed that the plaintiff’s lien on the property of True was postponed to Patton’s execution; the latter was valid as to the Sheriff.

Secondly: It was contended for the plaintiff that ■ Patton’s execution did not correspond with his judgment, and that the Sheriff ought to shew a judgment and an execution corresponding with it. To this objection, the answer is, that when a writ, from a Court of competent jurisdiction, is delivered to the Sheriff, he is bound to execute it according to the exigency thereof, without inquiring into the regularity of the proceedings, whej-eon that writ is grounded. And although the process, under which the Sheriff takes the goods of a defendant, may be voidable or erroneous, and of which the defendant might have availed himself in the original action, yet such a writ is a sufficient justification for the Sheriff in an action against him. For the Sheriff is a ministerial officer, in the execution of writs, and is not bound to examine into their legality. 2 Saund. 100. Cro. Jac. 280, 229. Watson on Sheriffs, 54.

Thirdly: The memorandum, made with the consent of the parties, by the Clerk of Buncombe County Court, in Patton’s suit — “ no fi. fa. to issue until October or until ordered” — did not annul or suspend the judgment, so as to avoid a fieri facias issued on it'. And although the execution was issued by Patton, in contravention of tin's memorandum, bearing teste of .the term the judgment was rendered, it was not void, but was a sufficient justification to the Sheriff of Lincoln in proceeding under it, as if no such memorandum had ever been made. True, the original defendant might have complained to the County Court of Buncombe, on a motion to set the execution aside, but the present plaintiff, who was no party to that suit, certainly has no right in law to complain of the conduct of Patton, or of the .Sheriff.

We think that the judgment must be affirmed.

Pke Curiam. Judgment affirmed.