Fitch v. Porter, 30 N.C. 511, 8 Ired. 511 (1848)

Aug. 1848 · Supreme Court of North Carolina

30 N.C. 511, 8 Ired. 511

A. FITCH vs. MARY PORTER.

■To support a declaration in an action of debt upon a judgment; the exemplification of the judgment itself must be produced ; it is not sufficient te slieW a scieri facias to shew cause why execution should not issue oí% the judgment and an award of execution according to the sci, fa.

Appeal from the Superior Court of Law of Mecklen-burg County, at tbe Spring Term, 1848, his Honox Judge1 Manly presiding.

This was an action of debt upon a judgment obtained by the'plaintiff against the defendant in the Court of Common Pleas for Richland District in the State of South Carolina. Plea, nul tiel record. Upon an inspection of the exemplification of the record produced by the plaintiff, it appeared to be an execution issued the 10th day of June, 1829, on a judgment recited therein to have been confessed by the defendant to the- plaintiff for the sum of $260 50-100 with interest and costs; and two scire faciases issued in the years 1845 and 1846 against the defendant, to show cause why the plaintiff should not have his execution against her upon the said judgment, with the sheriff’s returns of “nihil” thereon, and then an award of execution by the Court. The Court below adjudged that there was no such record and the plaintiff appealed.

Bynum and Wilson, for the plaintiff.

Osborne, for the defendant.

Battle, J.

The Court below was undoubtedly right in deciding, that there was no such judgment as that upon which the plaintiff declared. The exemplification of the record produced showed no judgment at all, but merely an award of execution upon a judgment recited therein to have been before rendered, but the judgment itself was not produced. The plea of nul tiel record put in issue the judgment declared upon, and the plaintiff was bound to produce an exemplification of it in support of the affirmative of his plea. The judgment must be affirmed.

Per Curiam. Judgment affirmed.