Foreman v. . Bibb , 65 N.C. 128 ( 1871 )

There was a motion by the defendants, supported by affidavits, before his Honor the Judge of the 2d Judicial (129) District, after due notice to the plaintiff, to have satisfaction of the judgment theretofore obtained in the Superior Court against them, entered of record, upon the ground that it had been paid since its rendition.

The learned counsel for the plaintiff concedes that this was the mode of proceeding, in such cases, both in England and in this State, prior to the adoption of the Code of Civil Procedure, and that it is still the appropriate remedy. Mann, Ex'r. v. Blount, ante 99.

But he insists that it is either a special proceeding, which the Act of 1868-'9, ch. 93 requires to be brought before the Clerk of the Court, or a civil action which must be brought before the Judge of the Superior Court, at a regular term of the Court. And he argues, upon the authority of Tatev. Powe, 64 N.C. 644, that it must be a special proceeding, and was therefore improperly moved before the Judge. The error consists in supposing it to be either a civil action or a special proceeding, as defined in Tate v. Powe. Supra.

It is neither, but only a motion in a pending cause, arising incidentally in its progress.

The idea that a party must be subjected to the additional costs of a civil action or special proceeding, in order to have the benefit of a simple motion in a cause still pending, is inadmissable. This was a judgment of the Superior Court, and as that Court is always open for the transaction of all business, except the return of process and the trial of issues requiring a jury, the motion was properly made before the Judge of the District.

In this case there was due notice, but even without notice the Judge may issue a restraining order, staying proceedings for twenty days. C.C.P., sec. 345. In the meantime notice can be served and all hardships which might arise for the want of speedy remedies can be averted.

The Judge finds the fact that the judgment in controversy has (130) been paid, and thereupon he ordered that payment and satisfaction of the same be entered of record.

The judgment must be affirmed.

Per curiam.

Judgment affirmed.

Cited: Moye v. Cogdell, 66 N.C. 404; Isler v. Murphy, 71 N.C. 438;Coates v. Wilkes, 94 N.C. 174.