Ross v. Alexander, 65 N.C. 576 (1871)

June 1871 · Supreme Court of North Carolina

65 N.C. 576

W. D. ROSS et al. v. HARRISON ALEXANDER.

Prior to the adoption of the C. C. P., the lien acquired by fi.fa expired at its return.

•Therefore, judgments obtained at Spring and Pall Terms, 1869, of Guilford Superior Court, and docketed respectively during the Terms of said Court, have priority over a judgment obtained in 1867, upon which fi.fas. regularly issued up to Pall Term, 1868, of the'Superior Court of Alamance, and no returns made thereto, at which Term the said judgment was transferred and entered on the'judgment docket of Alamance Superior Court, but not docketed in Guilford County till 34th December, 1869.

Johnson v. Sedberry, ante 1, cited and approved.

Motion for the application ot certain moneys in the hands '-■of the Sheriff’ot Guilford County, heard before Tour-gee, J., at Bpring Term, 1871, of Guilford Superior Court.

The facts were that one ~W. D. Ross obtained a judgment ¡at Spring Term, 1869, of Guilford Superior Court, against Robert D. Thorn, andhadtlie same docketed the 1st'of March, 1869. Four other judgments were rendered at the Fall Term, 1869, oí said Court, against the said Eobert D. Thorn. James £5. Scott obtained a judgment against Thorn at Spring Term, 1867, oí Alamance Superior Court of law; a transcript of which said judgment was docketed in Guilford County on the 24th of December, 1869.

The Sheriff returned at Spring Term, 1869, that he had in his hands five hundred and seventy dollars arising from the sale of the property of Eobert D. Thorn, having the six executions based upon the foregoing judgments, and asking the .advice of the Court as to how the said money shall be applied; and thereupon, the plaintiffs, other than James S. Scott, moved the Court for the application of the money to the payment of their executions to the exclusion, of the execution of James S. Scott.

All of the said plaintiffs were present in Court, accepted service of a rule, and consented to go into a hearing of said motions. His Honor found as a fact, that executions wore regularly 'issued on the judgment in favor of James S. Scott, to the ■Sheriff of Guilford county, up to Fall Term, 1868, of the Superior Court of Alamance county, at which Term the said judgment was transferred, and entered on the judgment docket of Alamance Superior Court. The executions issued as aforesaid were returned by the Sheriff of Guilford, without a levy, ■and that no execution on said judgment was issued from Fall Term, 1868, to Spring Term, 1869, nor from Spring Term, 1869 to Fall Term 1869, and no transcript of said judgment was docketed in Guilford County until December 24th, 1869.

Upon the foregoing facts, his Honor adjudged that the money brought into Court be applied first to the payment of the Eoss judgment, then ratably amongst the four judgments docketed on the 6th of September, 1869, and the remainder td the judgment of James S. Scott. From which order Harrison Alexander, assignee of the said Scott, appealed.

Scott c& Scott for appellant:

1. Causes in law and equity shall be transferred without prejudice by reason of the change. See Constitution, Art. 4, sec. 25.

2. By Legislative construction this has been made to apply to judgments as well. See C. C. P., sec. 403, and Johnson v. SecTberry et al., 65 N. C. 1. “ No lien acquired before the ratification aforesaid, shall be lost by any change of process.”

3. Docketed in Guilford Superior Court December 24th, 1869. That was in time, for by sec. 255, O. C. P., executions can issue any time within three years — this section applies to existing judgments. See Harris et at. v. Hides, Hill & Oo., et al., 63 N. C. 653. Therefore, if a year and a few days did pass, from the time execution was last returned, that did not prejudice the defendant’s rights.

4. The lien of an alias execution relates to the teste of the original. See Alien v. Plummer, 63 N. C. 307.

5. The execution of the ¡oldest teste is entitled to prioritjn Hwrm v. Nichols c& Jones, 63 N. C. 107.

6. Defendant’s execution was in hands of Sheriff at the time of sale and for near two and a half months before. See 65 N. 0.1.

Tf we ought to have docketed our judgment by transcript in Guilford before others, in order tojprocure our lien, then the Constitution and the Code secs. 400, 40.3, had as well not be páásed — they are valueless. Without such provisions we would have been ahead of them by that means anyhow. See rules 17 and 18, 63 N. C.

Hilla/rd efi Gilmer, for appellees.

Pearson, C. J.

A judgment gives a lien upon all of the real property of the defendant in the County, from the time it is docketed. So the judgment owned by Alexander was properly put last in the order of payment, unless there be some ground for making an exception.

On the argument, Mr. Scott relied upon the provision in regard to existing judgments. “ No lien acquired before the ratification aforesaid, shall be lost by any change of process.3’ O. C. P. sec. 403. In this instance, there was a change of process, from an alias and plv/ries fi. fa, and a vendiüoni exponas, which might have followed in ease of a levy, to the process of taking a transcript to the County of Guilford, and having the judgment docketed, and an execution issued from that county But the case does not come within that provision, for the party had “acquired no lienL The lien acquired by fi. fa. expires at its return, unless there be a levy, and' even the lien acquired, by a levy is waived by taking out an alias fi.fa. instead of following up the levy, by a ven. ex.

This fatal defect, to-wit: The want of a lien, cannot be supplied by any analogy drawn from Johnson v. Sedberry, 65 N. C. 1, which was relied on for that purpose.

Per Curiam. There is no error.