Cody v. . Quinn , 28 N.C. 191 ( 1845 )

Case commenced on 1 July, 1842, against the defendant as sheriff of Lincoln. Plea, not guilty. The plaintiff, on 19 August, 1839, issued an original attachment against one True for a debt of $131.80, and placed it in the hands of the defendant, who, on the same day, caused it to be levied on a coach and eight horses, the property of True. (192) The plaintiff obtained a judgment against True on his attachment at July Sessions, 1840, of Lincoln County Court, and issued a venditioniexponas, tested on the second Monday after the third Monday in February, 1842, returnable to June Sessions, 1842. At this term the court permitted the sheriff to amend his return on the original attachment by stating in it that the levy on the coach and horses was subject to James Patton's execution against True, tested before the levy under the said attachment.

The coach and horses were sold by the sheriff and the proceeds applied to Patton's execution, which absorbed the whole sum raised by the sale. Patton's execution was tested of July Term, 1839, of Buncombe County Court.

When Patton obtained his judgment a memorandum was made, by consent of parties, "No fi. fa. to issue until October." After the term there was an addition made to the memorandum by Patton and the clerk, in these words: "until ordered." These facts being admitted, the judge charged the jury that the plaintiff could not recover. There was a verdict and judgment for the defendant, and the plaintiff appealed. First. After the amendment in the sheriff's return to the plaintiff's attachment against True was permitted to be made by the county court of Lincoln, at June Sessions, 1842 (which the court had a right to permit to be made, Smith v. Daniel, 7 N.C. 128; Dickinson v.Lippet, 27 N.C. 560), the record in that case showed that the plaintiff's lien on the property of True was postponed to Patton's execution; the latter was valid as to the sheriff.

Secondly. It was contended for the plaintiff that Patton's execution did not correspond with his judgment, and that the sheriff ought to show a judgment and an execution corresponding with it. To this (193) objection the answer is that when a writ from a court of competent jurisdiction is delivered to the sheriff, he is bound to execute it according to the exigency thereof, without inquiring into the regularity of the proceedings whereon that writ is grounded. And although the process under which the sheriff takes the goods of a defendant may be voidable or erroneous, and of which the defendant might have availed himself in the original action, yet such a writ is a sufficient justification for the sheriff in an action against him; for the sheriff is a ministerial officer in the execution of writs, and is not bound to examine into their legality. 2 Saund., 100; Cro. Jac., 280, 289; Watson on Sheriffs, 54.

Thirdly. The memorandum made with the consent of the parties by the clerk of Buncombe County Court in Patton's suit — "No fi. fa. to issue until October, or until ordered" — did not annul or suspend the judgment so as to avoid a fieri facias issued on it. And although the execution was issued by Patton, in contravention of this memorandum, bearing teste of the term the judgment was rendered, it was not void, but was sufficient justification to the sheriff of Lincoln in proceeding under it as if no such memorandum had ever been made. True, the original defendant might have complained to the county court of Buncombe, on a motion to set the execution aside, but the present plaintiff, who was no party to that suit, certainly has no right in law to complain of the conduct of Patton or of the sheriff.

PER CURIAM. No error.

Cited: Wood v. Bagley, 34 N.C. 89; Shelton v. Fels, 61 N.C. 179;Jacobs v. Burgwyn, 63 N.C. 197; Clifton v. Wynne, 80 N.C. 148.

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