Bennett v. Taylor, 53 N.C. 281, 8 Jones 281 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 281, 8 Jones 281

MARTHA BENNETT v. JOHN R. TAYLOR et ux.

Where a fi. fa. on a justice’s judgment was levied on land, and the regular proceedings had in the county court for the subjecting the land, and a sale made by virtue thereof, it was held that the county court, at a subsequent term, has no authority, on motion to set aside the fi. fa. on the justice’s judgment.

This was an appeal from the Superior Court of Granville, from an order of that Court, (Judge Bailey presiding) to set aside a fieri facias.

An action of ejectment was brought by John R. Taylor and wife, of Wake county, to recover an undivided part of a tract of land, in Granville county, in the possession of Joseph EL. Gooch, who, by an order of Court, was made defendant, which action is still pending in Warren Superior Court. Mrs. Bennett, the nominal plaintiff in this case, was a witness for Taylor and wife in that suit, and assigned her witness tickets to Gooch, who took out a warrant on them to his use, and obtained a judgment before a justice of the peace of Wake county. This judgment was removed to the county of Granville, in the way directed by the act of Assembly, (Rev. Code, ch. 62, sec. 20) and a fieri facias was issued thereon, which was levied on the defendants’ interest in the land, for which the action of ejectment had been brought. Notice of this levy was given to the defendants, and an order of sale made by the County Court of Granville, at May Term, 1859. Pursuant to this order, a writ of venditioni exponas issued, directed to the coroner, (Gooch being the sheriff of Granville,) and the land was exposed to sale and bought in by the said Gooch at a nominal sum. While the ven. ex. was in the hands of the coroner the defendants sent to the clerk of the county court of Granville, the full amount of the judgment as it had been furnished to them by the clerk, with interest on the same up to June, 1859, and the costs, and this amount was paid to the coroner on 21st of May, 1859, when he made known that he claimed $2.74 for commissions. This amount was sent to the clerk on the-day of July, and tendered to the coroner, who refused it, saying that he had sold the land on the 1st Monday of that month.

The counsel for the defendants, on these facts, moved in the County Court to set aside the fieri facias levied on the land, which that Court refused. The defendants appealed to the Superior Court, and in that Court the counsel moved to set aside the justice’s execution, levied on the land, and returned to May Term, 1859, of the County Court, and to set aside the judgment given at that term for the plaintiff, and to set aside the order for the issuing of the venditioni exponas, and to set aside that writ itself, and to vacate the sale, made under it, on the ground of surprise, and because the judgment was satisfied by the payment of the money to the coroner.

The Court set aside the fieri facias, but denied the other motions. From this judgment the plaintiff appealed.

Fowle, for the plaintiff.

Winston, Sr., for the defendants.

Manly, J,

We think the Court had no power upon motion to set aside the fieri facias, as invoked to do, in the County Court, and, of course, the appellate Court has none. It was issued, it seems, on a justice’s judgment, Bennett v. Taylor and wife, which had been transferred from the county of Wake to the county of Granville, under the provisions of the Rev. Code, chap. 62, sec. 20. It was levied upon the interest of the defendants in a parcel of land, returned to the County Court, with notice of the fact to the defendants. The judgment of the justice was then affirmed, a venditioni, ordered — issued—executed and returned. The County Court was their moved to set aside the fi. fa. on the justice’s judgment. The motion was over-ruled and an appeal taken to the Superior Court — the motion there renewed and sustained and an appeal to this Court.

We are not aware of any principle upon which such a motion can be sustained. The fieri facias complained of, is part of the case that belonged to the jurisdiction of the justice. It was not returned to the Court for review, as upon a writ of error, but placed there in consequence of the levy on land, and in obedience to a statute, which, in such case, required proceedings to subject land to the payment of debts, to be of record. The proceedings, therefore, up to the levy, are the complete and unreversed proceedings of a separate tribunal. They are placed in the Court, not for the purpose of being reviewed, but to put on record ulterior proceedings.

The motion, therefore, in substance, is to amend, in one court, the process of another. This is obviously improper. If upon return of the levy to Court, the justices’ proceedings could be considered in fieri and unfinished, yet, before the motion was made, there was, again, a complete record — a judgment — writ of venditioni exponas — sale—and return ; and there was no power in the Court to amend the process, upon motion, and thus to affect interests that had sprung up under it. This was held in the case of the Cape Fear Panic v. Williamson, 2 Ire. Rep. 147, and laid down as an established principle in Phillipse v. Higdon, Busb. Rep. 380.

The case manifestly differs from one in which the amendment is to make the record conform to the truth, which a court has, at all times, power to do in respect to its own records. It also differs from the power exercised to quash a writ, that has been issued improperly, leaving a person whose interest is supposed to be affected, to look for redress to the party who wrongfully sued it out. The case of Ashe v. Streator decided at this term, (ante 256,) is a case falling under the former class, and that of Adams v. Smallwood, (ante 258,) under the latter.

We have considered the case only as a motion to set aside or vacate thefi. fa. on the justice’s judgment, which was the motion made in the County Court, and from the decision of which, the appeal was taken. In the Superior Court, it seems other motions were made, viz., to set aside. 1. The judgment then of record. 2. The order for a venditioni exponas, and 3. The venditioni exponas itself.

Assuming that the motions were over-ruled, which, does not expressly appear, there was no appeal by Taylor aud wife, and the decision of them, therefore, has not been brought here for re-examination. They are no part of the case now in this Court. It may not be improper to say, however, that they are manifestly subject to the objections already noticed in respect to the other motion.

It will be perceived also, that we have considered this case simply in relation to the power of amendment, and not as to the force and effect of the proceedings, and the sale in pursuance of them, or as to the effects of the payments, which are alleged to have been made in satisfaction of the judgment, before the venditioni exponas was executed. These are questions not properly before us upon this record, and we do not consider them.

The judgment of the Superior Court should be reversed, and that of the County Court affirmed.

Per Curiam,

Judgment reversed.