Opinion
(December Term, 1860.)
Where two fi. fas. had been issued to different counties on the same judgment, and one had been satisfied before the return term, it was Held, in order to vacate a sale made of the defendant's land on the return day, under the second execution, to be competent for the court to quash and set aside such second execution.
MOTION to set aside an execution, before Saunders, J., at last Fall Term of GUILFORD.
Morehead and Gorrell for plaintiff.
Scott for defendant.
The facts are these: Peter Adams obtained a judgment against Pylades Smallwood and Joab Hiatt at February Term, 1860, of Guilford County court, for $285. Two fieri faciases issued upon said judgment, returnable to May Term, 1860, one directed to the sheriff of Halifax where the defendant Smallwood lived, which was returned on Wednesday of the return term "satisfied," and the money paid into office; the other issued to the sheriff of Guilford, who levied the same on a house and lot, and having advertised the same according to law, exposed it to sale as the property of Smallwood on Monday of May Term, 1860, when M. D. Smith became the last and highest bidder, at the price of $560.
On Saturday, of the said term, Adams, having received his debt on the execution to Halifax, moved the court to set aside and vacate the fi. fa. directed to the sheriff of Guilford.
(259) This motion was opposed by Smith, who had purchased the property under it, but was allowed by the Court. Smith was permitted to appeal to the Superior Court, and in that court the same motion was made and allowed by the court, from which ruling, Smith appealed to this Court.
It is believed to be within the power of a plaintiff who has judgment to sue out a writ of fieri facias and before return day, nothing being done, to return it into the office and sue out another, but it is not within his power to take two writs at the same time, without special leave from the court. It was, therefore, irregular and without any warrant of law, that the two writs of fieri facias were sued out in this case. All that is decided, as we conceive, in McNair v. Ragland, 13 N.C. 42, is in conformity with the above.
It was competent, therefore, for the court, upon its own motion, to have quashed at least one of the writs. It was especially proper for it to do so after one was satisfied. The judgment thereby became extinct, and the fieri facias was consequently deprived of all legal vitality.
It might, occasionally, conduce to the ends of justice to be allowed to take out more than one execution at a time; and, upon proper suggestions as to its expediency and satisfactory assurances that it would not be urged for the purposes of oppression or fraud, the court would allow it. The writs in such case would be put into action upon the responsibility of the party suing them out, but this responsibility would not dispense the court from the duty of seeing that the objects were apparently legitimate and from guarding, as far as possible, against a misuse of the process. It is a power, in other words, which the Court ought to put into the hands of the plaintiffs sparingly and with caution.
PER CURIAM. Affirmed.
Cited: Bennett v. Taylor, post, 283.
(260)