Thompson v. Berry, 64 N.C. 81 (1870)

Jan. 1870 · Supreme Court of North Carolina

64 N.C. 81

D. C. THOMPSON v. B. A. BERRY.

Where a scire facias, tested at May Term 1868, had been issued, to enforce a judgment nisi at that Term, against a Sheriff, for not making due return of process : Held, to have been the appropriate remedy.

(Teaguey. James, 63 N. 0. 91, cited and approved.)

Scire Eacias, tried upon demurrer, by Buxton, J., at July Special Term 1869, of Iredell Court.

At February Term 1868, of the County Court of Iredell, the plaintiff recovered judgment against Avery and another, and a fieri facias,, returnable to May Term 1868, thereupon issued to the defendant in this action, who was Sheriff of Burke, which he returned levied, &c. At said Term (May 1868) the plaintiff, on motion, recovered a judgment nisi against the defendant for $100, for want of a proper return on said execution; and thereupon a -scire facias in the usual form, tested of May Term 1868, issued, addressed to the Coroner of Burke, which was never returned. An alias sci. fa., issued from the Superior Court of Iredell, tested of Eall Term 1868, which was returned to Spring Term 1869, when the defendant demurred.

The Judge sustained the demurrer, and the plaintiff appealed.

Boyden & Bailey, for the appellant.

W. P. Caldwell, contra.

Bodmaít, J.

(After stating the facts as above.) This case differs from the other case between the same parties, decided at this term, in this : in that, the amercement was for not making due return upon a venditionas ex-ponas, issued after the return of the fi. fa., and was made in the Superior Court at Fall Term 1868, which was subsequent to the ratification of the Code of Civil Procedure ; in this, the amercement and the teste of the original sci. fa. was in May 1868, and before the ratification of the Code, which was in August 1868. Section 400, C. C. P. authorizes the transfer of all suits pending at its ratification, to the proper Superior Courts; section 402 says they shall be proceeded in and tried under the existing laws and rules applicable thereto; and section 362, which abolishes the writ of scire facias, says that any proceedings theretofore commenced shall not be affected by such abolition. The sci. fa. tested of May Term 1868, was the commencement of this action, and, it was consequently governed by the existing rules of practice and procedure. Teague v. James, 63 N. C. 91.

The judgment below must be reversed, and the demurrer overruled, and tire defendant ordered to answer over. Let this opinion be certified.

Per, Cttrtaw. Judgment reversed.