McElrath v. Butler, 29 N.C. 400, 7 Ired. 400 (1847)

Aug. 1847 · Supreme Court of North Carolina

29 N.C. 400, 7 Ired. 400

J. J. McELRATH & AL. vs. THOMAS BUTLER.

Where a judgment was rendered in October 1838 by a magistrate, upon a return of the constable on the warrant “ executed,” but not having the name of the constable signed to the return ; Held, that this judgment waB not void, for the want of the signature of the constable to the return on the warrant.

And, held further, that the defendant in that judgment, against whom a ■ magistrate, at a subsequent time, had rendered judgment upon the former judgment, could not be relieved from the last judgment by writ of recor-dari, without first having the prior judgment reversed.

Appeal from the Superior Court of Law of Burke County, at the Spring Term, 1847, his Honor Judge Dick presiding.

The defendant, Butler, issued a warrant against Hugh McElrath and several others, in a plea of debt for the sum of One Hundred Dollars, due by note; and the constable returned the warrant, “ executed,” but did not sign his name thereto, and afterwards he died. On the 15th of October, 1838, R. C. Pearson, a Justice of the Peace, entered judgment against the said Hugh for #100 principal, interest and costs. On the 4th day of September, 1843, Butler issued another warrant against Hugh Mc-Elrath, in a plea of debt due by former judgment, in the sum of #100. This warrant was executed and a judg-dered on it, by Thomas Walton, a Justice of the Peace. Hugh McElrath obtained a writ of recordari to issue to Walton to record, the proceedings had before him, and send them into the Superior Court of Burke County: which was done accordingly. The ground of the .motion for the recordari was, that the first warrant, on which Pearson gave a judgment against him, had never been executed on him, nor had he any notice of the same. The Judge, on the hearing in the Superior Court, ordered that the judgments, heretofore given by R. C. Pearson and Thomas Walton, Esquires, be vacated. From this order, the defendant, Butler, appealed-to the Supreme Coui't.

No counsel for the plaintiffs.

Avery, for the defendant.

Daniel, J.

It seems to us that the Judge erred in reversing the first judgment, given against Hugh McEl-rath by R. C. Pearson ; for there was no petition nor prayer by Hugh McElrath, that it should be vacated. It was not before the Court. Secondly. Hugh McElreath insisted, that the judgment rendered against him by Walton was erroneous, because he, Walton, had rendered it on the former judgment, which Hugh alleged was void, as having been rendered against him without notice. The Judge, we think, erred in reversing this judgment. The warrant, on which the first judgment was rendered against Hugh McElrath, was returned executed on him by the constable, but the constable neglected to sign his name to his return. We do not think that the judgment rendered by Pearson was void. If it was erroneous, until it was reversed for error, it was good evidence, for Walton to render the second judgment on. We think that the judgment of the Superior Court must be reversed, and judgment on the recordari entered for the original plaintiff, Butler.

Per Curiam. Judgment accordingly.