Bowen v. Lanier, 4 N.C. 241, 1 Taylor 241 (1817)

Jan. 1817 · Supreme Court of North Carolina

4 N.C. 241, 1 Taylor 241

BOWEN and STONE against LANIER.

A wrif f error cannot be sustained unless there bea judg. ment ot equivalent • but errors in !aw cannot ¾⅛ íissifTcecl to proceSS in nature of an execlltl0r>> for mat, it irregular must be set aside in a different way. The Comity Court for the sale of land after a a,ml return oi no not ⅝⅞¾⅞ment, though ‘Í may ll.ave the oualitv ofoneaitach-ing a lien up-the laud, jVdgíñVpt properly so fected’by a! rendered'by a Court of Record, which that of a justice is not.

THIS was a writ of error sued out of Rockingham Supe-tior Court, to reverse certain proceedings which com men- . , . ced by a warrant issued by a magistrate, ana terminated in the County Court. The warrant was as follows. J

“State of N. Carolina, y To any lawful officer to execute and Rockingham County, $ return within 30 days, Sundays exCepted. You are hereby commanded to arrest the body of Ezekiel * Bowen, and him safely keep so that you have him before some jus-lice of the peace for the said county to answer the complaint of Samfison Lanier onfe note of hand for 56 dollars. Herein fail not. 1 Given under hand, this 27th July, 1808. ,

JA. LADD. [Seal.]

The service of the warrant was acknowledged and judg-toent confessed on the day it bears; when also the Defendant stayed execution, and gave B, Stone as security, J J An execution was endorsed on the warrant in the ing. words:-* o

“ Rockingham County.—Of the goods and chattels, lands and tenements of the Defendant and security, you are hereby commanded to execute and cause to be made the sum of the above. 20⅛ _ * ' February, 1809. - A. PHILIPS.

On these proceedings the constable made a return on the 27th February 1809, that there were no goods and chattels to be found, wherefore he had levied on three tracts of land, to satisfy this and four other executions against the Defendant, at the suit of the said Plaintiffs.

On the return of these proceedings to the County Couf* on the last Monday in February in the same year, a motion was made for a venditioni exponas, which was accordingly ordered, and issued in the following words. “ Ordered by the Court that so much of the land's of the Defendants already executed by a constable be sold as will satisfy a judgment obtained against them by A- Lanier for the sum of twenty eight pounds, besides fees.” At the following sessions, the execution was returned “satisfied by the sale of land.” The following assignment of errors was made-

1. That in the judgment rendered in the County Court of Rockingham, there is error in tins, that the writing purporting to be an execution issued on a judgment rendered by a justice, was not a valid and legal execution, but was void.

2. Thai the writing- purporting to be a judgment rendered by a justice was not a sufficient and legal judgment* Upon which an execution could be issued, but was void.

3. That the writing purporting to be a warrant or the-leading process, was nota sufficient and legal warrant, but Was void.

4. That there was no leading process or warrant.’

5. That the papers on which the said- judgment was rendered by the justice were not returned to the County Court aforesaid which rendered the judgment for the sale of the land.

6. That the said execution was not returned to the next' CoUnty Court held for the said County, after the levy thereof on the said lands ; the Court commencing the same day the levy %vas made, viz. 27th February, 18Ú9.

7. That the justice to whom the constable returned the execution, did not return the same to the next Coúrt held for the said county, after the levy thereof On the said lands ; the Court commencing the same day the levy was made, viz. 27th February 1809.

7; That the justice to whom the constable returned the execution, did not return the same to the next Court held for the said county, after the execution was returned to him by the constable. -

Murphey for the Plaintiffs in error. Norwood for the Defendant.

Seawell, J.

delivered the opinion of the Court.

It is an essential foundation to support a writ of errof, that there be a judgment, of something which is to be considered as such. None of the errors assigned in this case, ii they are all to be viewed as errors in law, apply to the rendition of the judgment: they merely apply to the process in the nature of execution to enforce the judgment, which, if irreguiar, must be set aside in a different way ; as by motion, supersedeas, or the like. The order of the County Court after a return by the constable of a levy on the lands, cannot in any wise be regarded as such—it may possibly be considered as having some effect upon their liability to answer the demand, and in that respect,, have the qúality of a judgment.: but it is not that act of the Court which determines the Plaintiff’s right to the thing demanded ; that was previously ascertained by the judgment pi the justice. There was no examination of the Piaiutiff’s demand, nor day given to the Defendant to make defence :—It was simply an application to the Cqurt to award execution of sale against the lands of the Defendant previously levied on, and the process then issued, if informal or irregular, must be set aside, as any other execution ; if void, it was of no forcé or effect, and consequently displaced no right of the present Plaintiffs in error. The judgment hotvever cannot in any event be effected by a writ of error, for it was rendered by a Court,not of Record, and consequently, must stand unreverspd by this ’ Court,^* (■

* Ruffin, Being concerned while at the bar, as counsel, gave no opinion, '