McDowell v. Robison, 48 N.C. 535, 3 Jones 535 (1856)

Aug. 1856 · Supreme Court of North Carolina

48 N.C. 535, 3 Jones 535

CHARLES McDOWELL vs. J. A. ROBISON.

Upon a issuing with a venditioni exponas upon tbe return of a former fi. fa. levied on property which was not sold, it is sufficient to return “no property except what heretofore has been levied on and sent to your office.”

Sbi. fa. upon an amercement nisi, tried before Manly, Judge, at the Ball Term, 1855, of Burke Superior Court.

The allegation was, that a certain ji. fa. in favor of Charles McDowell against one J. R. Dyche, had issued from the office of the Supeiior Court of Burke. A previous Ji./a. had been issued in the case, which had been returned levied on a house and lot in the town of Murphy, and thereupon two writs were issued, that is, the fi. fa. above mentioned and a venditioni exponas to sell the property levied on. Upon the fi. fa. the defendant, as sheriff, returned as follows: “ Due search made by me and no other goods, chattels, lands or tenements to be found in my county, subject to execution, except what heretofore has been made and sent to your office.” To the venditioni exponas he returned “ no sale for the want of bidders,” and it was insisted that the return to the fi. fa. was a nullity, and that for the want of a return, the plaintiff was entitled to judgment for $100.

But the Court, being of opinion that the return was sufficient, gave judgment for the defendant, from which the plaintiff appealed.

W. W. Woodfin, for plaintiff.

Gaither, for defendant.

Nash, C. J.

We see nothing in the case to induce us to disturb the judgment rendered in the Court below. No reason has been shown why the return of the sheriff was not according to law; nor can we well perceive how the sheriff could make any other return if the facts were as he stated them, and they are not disputed. A. fieri faeias had come to his hands, in favor of the plaintiff, against a man by the name of James R. Dyche, which he had duly returned, levied on certain property. From the term of the Court to which the process was returned, the clerk issued two writs, one a venditioni exponas and the other a fi,. fa. Upon the latter, the defendant returned that there was no property of the defendant upon which he could le-?y it, but that upon which he had previously levied, under the first fi. fa. ; and upon the former, no sale for the want of bidders. The regular course of the Clerk of the Superior Court of Burke to have pursued upon the return of tlie first fi. fa., would have been to have issued a venditioni exponas with the fi. fa. clause. If he had done so, the returns upon it, supposing the facts to be as alleged, would have been precisely what he has returned'—-no sale for the want of bidders under the venditioni ex-ponas, and no property of the defendant to be found except that already levied on under the previous fi. fa. It can make no difference that the writs were on different pieces of paper. The sheriff’s return was duly made, and there is no error in the judgment of the Court below.

Per Curiam.

'. Judgment affirmed.