Opinion
(June Term, 1862.)
The provisions of Rev. Code, ch. 31, sec. 50, requiring the return of all writs, process, etc., to be made on the first day of the term to which they are returnable, does not apply to executions of writs of fieri facias.
MOTION for a judgment ni. si. against the defendant, as sheriff of HENDERSON, heard before Dick, J., at Spring Term, 1861. This case was submitted to his Honor on a
CASE AGREED.
An execution issuing from the county court of Henderson, in favor of George Ledbetter against one William Reese, more than twenty days before the term of the court, was placed in the hands of the defendant, who failed to return the same on the Monday of the term. On Thursday of the term, to which the execution was returnable, the plaintiff asked for and obtained a judgment ni. si. against the defendant, who immediately thereafter paid the amount called for in the execution to the plaintiff's attorney, and asked for and obtained leave of the court to make his return. On the next day (Friday) the defendant asked leave of the court to strike out the order granting a judgment against him, which was granted and the judgment ni. si. was ordered to be stricken out, from which the plaintiff prayed and obtained an appeal to the Superior Court.
In the Superior Court a pro forma judgment was given for plaintiff, and defendant appealed to this Court.
No counsel for plaintiff.
Phillips for defendant.
The provisions of The Code, ch. 31, sec. 50, requiring the return of all writs, process, etc., on the first day of the term to which they are returnable does not apply to executions or writs of fieri facias.
This is apparent from a consideration of the section in all its parts, for it is further provided therein that process not made returnable or executed as directed shall be adjudged void upon the plea of the (476) defendant. From which it seems that it means such process as a plea could be made to, viz., original, or mesne; see Duncan v. Hill, 19 N.C. 291. It is also apparent from the provisions made by law for postponing sales under execution from the first to the later days of the term; Rev. Code, ch. 45, sec. 14, and from the general practice of the courts.
The sheriff is allowed all the days of the term to return a fieri facias unless he be ruled, upon motion and cause shown, to return it on some intermediate day. When the return is made, like other acts of the court, it stands, by relation, as if done on the first day.
It follows that when a sheriff made due return on Thursday of his execution, it was not only in the power, but it was the duty of the court to strike out the conditional judgment as soon as the fact of the return was brought to its notice.
The proceedings of a court are all in paper until its close, and are subject in the meanwhile to be reviewed, amended, or revoked, as may seem to the court's maturer judgment right and proper.
The action of the county court was strictly in accordance with law, and consequently the pro forma judgment of the Superior Court erroneous, wherefore the latter should be reversed and judgment for the defendant.
PER CURIAM. Reversed.
Cited: Faircloth v. Ferrell, 63 N.C. 642; Peebles v. Newsom, 74 N.C. 475; Person v. Newsom, 87 N.C. 143; Boyd v. Teague, 111 N.C. 247.