Aycock v. Harrison, 63 N.C. 145 (1869)

Jan. 1869 · Supreme Court of North Carolina

63 N.C. 145

BENJAMIN F. AYCOCK v. F. B. HARRISON; and others.

Where a ven. ex., was returned to August Term 1866 of Wayne County-Court endorsed “ No sale on account of the Stay Law;” Held, that such was not a due return; also, that the plaintiff in the execution was entitled to have another writ of ven. ex. issued from the August Term.

Where at the time that a motion for a • procedendo to the County Court was made in the Superior Court, the motion should have been granted, and in the interval between that time and the time when the case was decided in the Supreme Court the County Courts had been abolished, held, that as the Court was not informed whether the record of the case had been transferred, the only order practicable was, that the case be remanded to the Superior Court,in order that the plaintiff might take such steps as he might be advised.

MotioN for a procedendo, beard before Barnes, J., at Pali Term 1866 of tbe Superior Court of Wayne.

At August Term 1861, of the County Court of Wayne,, the plaintiff had obtained a judgment against the defendants. Successive executions were duly issued thereupon, and, previously to May Term 1866, a levy had been made upon certain land. From May Term 1866, a ven. ex. was issued, and at-August Term thereafter, it was returned “ No sale on account of the stay law.” At the term last mentioned, the plaintiff" moved for an alias writ of ven. ex., but the motion was refused. He thereupon appealed, anO, before his Honor below, moved for a writ of procedendo, directing the County Court to issue the writ of ven. ex., as asked for before.

His Honor refused to allow the motion, and the plaintiff appealed again.

JPerson, for the appellant.

No counsel contra.

Reade, J.

The return of the sheriff, on the venditioni exponas issued from May term 1866 of the County Court, “No sale on account of the stay law,” was without warrant of law. The plaintiff’s motion at November term, 1866, for an alias ven. ex. ought to have been allowed. The plaintiff’s motion at Fall Term of the Superior Court, 1866, lor a writ of pro-cedendo ought. to have been allowed. The refusal of the motion by his Honor was error. But it was an error which can not now be cured; for the Court, in which the judgment and execution were, has been abolished. There is, therefore, no Court to which the writ of procedendo can issue. There is a provision for transferring the case from the County into the Superior Court, but whether that has-been done, we are not informed. At least, there is no remedy which we can administer as the case now stands. The plaintiff is entitled to judgment for his costs in this Court, and the cause will be remanded,, that the plaintiff may proceed as he may be advised.

This will be certified, &c.

Per Curiam. Error.