Whitehead v. Hellen, 74 N.C. 679 (1876)

Jan. 1876 · Supreme Court of North Carolina

74 N.C. 679

WILLIAM WHITEHEAD v. JOHN F. HELLEN.

A sheriff may return an execution before the return term thereof, if it be satisfied, or if there can be no property found, out of which to satisfy the same.

(Ilutehinson v. Symons, 67 N. C. Rep. 156, cited and approved.)

This was a Picecrdirg STrfjhttcrtal to execution, heard before Moure. J., at Spring Term, 1875, of Pitt Superior Court, upon appeal from an order of the Probate Court.

Two judgments were rendered against, the defendant and in favor of the plaintiff at Fall Term, 1874, amounting in the aggregate sums thereof, to about $1,000, which judgments were regularly docketed in the. Superior Court of said county, and executions issued thereon from Fall Term, 1874, returnable to Spring Term, 1875. These executions were returned on the — day of November, 1874 “unsatisfied,” and shortly thereafter, to-wit, on the 14th day of November, the plaintiff made affidavit before the clerk as the foundation of these proceedings.

The clerk issued his order for the examination of the judgment debtor, returnable before him on the 18th day of November, 1874, and the hearing was on that day continued until the 20th of November, at which time the defendant appeared with counsel and moved to dismiss the proceeding, for the reason that the executions against the defendant, upon which the proceeding was based, were unduly returned, in that they should not have been returned until the regular term of the court to which they were made returnable, to-wit, Spring Term, 1875, and the sheriff was bound to hold the executions until the actual meeting of the court, and had no right to return them before.

To sustain this motion, the court allowed the defendant to. prove by the deputy sheriff, that at the time the sheriff made: the return on the executions, he had seized under other and older executions, and then had in his possession, eight bales of cotton, an old iron safe and a wardrobe, the property of the defendant.

Upon the cross examination it appeared that the property seized did not exceed in value $550, and that it was all that could be found belonging to the defendant, after allotting his personal property exemption. It also appeared, that the older executions under which the property had been seized, amounted to more than $900.

The clerk sustained the motion of the defendant and dismissed the proceeding, from which ruling the plaintiff appealed.

The appeal was heard before hill ¡aid, J., at Chambers, on the 15th day of December, 1875, and upon the hearing the defendant produced the notice served upon the plaintiff, to the effect that he should move the conrt to set aside the return of the sheriff, upon said execution.

Upon the hearing of this motion the defendant offered to prove that there was collusion between the plaintiff and the sheriff in making said returns. The court refused to hear the evidence, holding that the court must decide the case upon the record.

After argument the conrt dismissed the proceeding and remanded the case'to be proceeded with according to law.

On the — day of January, 1875, after notice to both parties, the case came on for a hearing in the Probate Court, when the defendant appeared and renewed the motion to dismiss upon the grounds aforesaid, producing a notice served upon the plaintiff to the effect that he would move the court to set aside the said returns of the sheriff; and upon this requested the court to hear evidence in support of the motion.

The clerk overruled the motion to dismiss and proceeded to examine the-judgment debtor,, who admitted under oath that James II. Hellen owed him '$41.50,■ Kinchen Jenkins $95, E. L. Laughinghouse $85, Wiley Clark $1,100, N. E. Covey $10, and T. J. Smith $20.

The clerk thereupon ordered that J. A. Sugg be appointed receiver of the property and effects of the defendant, the judgment debtor, and that said receiver be invested with the usual rights and powers of receivers.

From this order, and the ruling, refusing to dismiss the proceeding, the defendant appealed to the Superior Court.

The ease was heard upon appeal before Moore, J.. at Spring Term, 1875, when the defendant again moved the court to dismiss the proceeding upon the grounds heretofore set out.

The court inquired of the defendant if he charged that there was fraudulent collusion between the sheriff and the plaintiff in making the return. The defendant replied that he did not, but on the contrary expressly declared that lie did not rfiean to charge that the sheriff had acted corruptly or improperly. He only meant to say that the return was made at the suggestion of the plaintiff to enable him to institute these proceedings, and that this amounted to legal collusion.

Upon this statement, the court declined to dismiss the pro ceeding, but made the following order:

“The above named defendant, John E. Hellen, having been examined before Henry Sheppard, Clerk of the Superior Court of Pitt county’, in proceedings supplemental to execution, and the defendant having appealed from the order appointing J. A. Sugg a receiver of the goods and effects of the defendant, it in orám-ci: ■

1. That the order of the clerk be approved, and the said J. A. Sugg be appointed receiver of all the property of the said judgment debtor, not exempt from execution.

'■ 2. That the said receiver execute to the clerk of this court a bond, with sufficient securities-, to be approved - by the said clerk in the penalty, of three thousand dollars, for the faithful performance of his said trust, and file the same with the clerk of said court for the county of Pitt.

3. That the said receiver be invested with the usual rights and powers of receivers in such cases, upon the filing of said bond.

4. That the said judgment debtor, John E. llellon, deliver to the said receiver all money and other property now in his hands not exempt from execution, as well as all the notes, bonds and dioses in action given in, in his examination before the said clerk.”

From this order the defendant appealed.

Entile & Son, for appellant.

Moore dh Qatling, contra.

Settle, J.

Can a sheriff, who has in his hands an execution issued from Fall Term, 1874, returnable to Spring Term, 1875, return the same in vacation, or must he hold it until term time and return it to court ?

This question being determined, everything else, in this case, will follow as a matter of course.

If an execution be satisfied soon after the adjournment of the court from which it issued, why should the sheriff be compelled to retain the money in his own hands until the term- to which the execution is returnable ? "Would it not be better for all concerned, that he should pay the money, either into office or to the party entitled thereto ?

And if, on the other hand, it be apparent that nothing can be found, out of which satisfaction can be had, why may he not return the execution “unsatisfied,” at any time before the regular term of court ?

That is the limit beyond which he may not delay, but there is no good reason why he should delay so long, if no useful' purpose is to be served thereby.

But the defendant says the sheriff had signed, and then had in his possession his property, to-wit: eight bales of cotton, an old iron safe and a wardrobe, under other and older" executions in bis bands, and bad not sold tbe same wlien he. returned tbe executions in favor of tbe plaintiff “ unsatisfied.’’ In reply to this it is shown that tbe value of all tbe property seized, or to be found, belonging to tbe defendant, after setting apart bis exemptions, does not exceed five hundred and' fifty dollars, and that tbe executions in tbe bands of the sheriff, older than tbe plaintiff’s executions, and under which., tbe property aforesaid bad been seized, amounted to over nine-hundred dollars.

Tbe statement renders it perfectly clear that tbe sheriff" could not make the debt by keeping tbe execution in bis hands., until term time. Then why should be do so, and thereby put. an obstacle in the way of collecting the debt, when by promptly returning tbe facts be could open tbe way for sup- • plemental proceedings, and aid tbe purpose for which the-execution was placed in Ids bands ?

It would seem from tbe record that tbe supplemental proceedings are about to bear fruit, and this case furnishes a fair-illustration of the benefits which may flow from tbe practice herein sanctioned. Hutchinson v. Symons, 67 N. C. Rep. 186.

Tbe judgment of the Superior Court is affirmed. Let this,; be certified, &c.

Peb Cukiaw. Judgment affirmed-