Matthews v. Gilreath, 33 N.C. 244, 11 Ired. 244 (1850)

Aug. 1850 · Supreme Court of North Carolina

33 N.C. 244, 11 Ired. 244

ELIJAH MATTHEWS vs. PENNILL GILREATH & AL.

Under the act of 1848, relating to the County of Polk, all the records, transferred to the Superior Court of Polk from the County of Rutherford are directed to be returned to the Superior Court of Rutherford County, the hot of 1846 establishing the Superior Courts in Polk having been repealed by the act of 1848 ; Held, that the Superior Court of Rutherford had the right to issue an execution on a judgment, rendered in the County of Polk, while the latter had jurisdiction, as to cases from the former county, removed by the act of 1846 and retransferred by the act of 1848.

Appeal from the Superior Court of Law of Rutherford County, at the Spring Term 1850, his Honor Judge Caldwell presiding.

This is a motion, made by the defendants in Rutherford Superior Court, to set aside an execution issued from that Court against them : and these are the facts, on which it is fouhded. In 184(5 acts were passed, to establish a County, called Polk, out of parts of Rutherford and Henderson Counties, and also establishing Superior and County Courts therein. In 1848 those acts were repealed, and in a supplemental act, ch. 19, the Clerk of the Superior Court of Polk is required to make out a transcript of all suit's pending therein, and where either or both of the parties live in that part of Polk, which was taken from Rutherford, to deliver the same, with the original papers relating to such transcripts, to the Clerk of the Superior Court of Rutherford ; with a similar requisition, to deliver to the Clerk of the Superior Court of Henderson the transcripts of the oases, in which the parties live in that portion, which Was taken from Henderson, The third section of the act further requires of the Clerk of the Superior Court of Polk, to deliver “all the records and dockets belonging to his office to the Clerk of the Superior Court of Rutherford.” By the 15th section, it is further enacted, that the Clerks of the Superior Courts of Rutherford and Henderson, respectively, shall have the same power and authority over the records and papers, which are hereby required to be transferred to their offices, as if such records and papers had before belonged to the offices of the Clerks of Rutherford and Henderson. The execution in question is a fieri facias on a judgment rendered in Polk Superior Court in 1848, of which the original record was removed into the Superior Court of Rutherford, and which, according to the record, remained unsatisfied. The alleged ground of the motion was, that the Clerk of Rutherford Superior Court could not issue a fieri facias upon a judgment rendered in the Superior Court of Polk. The Court refused the motion but allowed the defendants to appeal.

J. G. Bynum, for the plaintiff.

N. W. Woodfin, for the defendant.

Ruffin, C. J.

The Legislature is competent to direct, where the records shall be kept and what officers shall from time to time issue lawful process upon them. The. only question, therefore, is, whether, by the proper construction of the act of 1S48, executions are to be issued from the Superior Court of Rutherford on judgments rendered in the former Superior Court of Polk. It would seem, that there could not be a doubt upon it. The acts abolish Polk County, its Courts and Clerk’s offices, except ing only, that the Clerk is kept in office until he can perform the duty of transferring the records, as directed in the act. The provisions upon that subject are not the same in respect to both Counties, They are, that of the suits pending, transcripts shall fee made, and, together with the original papers, relating to the respective transcripts, shall be delivered by the Clerk of Polk in the following manner : that is. to the Clerk of Henderson, those* in which the parties live in Henderson, and to the Clerk of Rutherford those, in which either of the parties lives in the latter County. In that mode, áre disposed of all the undecided cases. Then, as to the cases, which had been decided, the provision is plenary, with the exception of the original papers relating to pending suits, which go with the respective transcripts of those suits — “all the records and dockets belonging to his office” are to be delivered by the Clerk of Polk to the Clerk of Rutherford Superior Court. It obviously follows, that the execution is to issue from the Court, in which the record of the judgment is; it can issue from no other; and, as the Legislature could not mean, if within its power, to deprive the citizen of the benefit of his judgment rendered in Polk, he must be entitled to execution on it from the Court of Rutherford. That is rendered still clearer, if possible, by the command in the 15th section to the Clerks in Henderson and Rutherford to act on those records and papers, thus transferred, as if such records and papers had originally belonged to their offices; which,no doubt, was intended to enable and require those Clerks to proceed immediately in those cases, without any special direction of the Court, according to the course of the office. It must, therefore, be certified, that there was no error in refusing the motion.

Per Curiam. Ordered accordingly.