Overton v. Abbott

Full title: M. J. OVERTON v. WILLIAM R. ABBOTT

Court: Supreme Court of North Carolina

Date published: Jun 1, 1867

61 N.C. 293 (N.C. 1867)

Opinion

(June Term, 1867.)

Where a scire facias to enforce the levy of an execution had been dismissed in the county court: Held, that it was proper for the Superior Court, upon reversing that order, to award a procedendo.

( Mardre v. Felton, ante, p. 279; Riddick v. Hinton, ante, p. 291, and Morehead v. R.R., 7 Jon., 500, cited and approved.)

SCIRE FACIAS, tried before Warren, J., at Fall Term, 1866, of the Superior Court of CAMDEN.

The case here came up by appeal from the county court. The plaintiff had obtained a judgment (for $992) against the defendant at September Term, 1861, of the county court, and a fi. fa. issuing from that term had been levied upon land and returned to September Term, 1862. Afterwards a writ of sci. fa. was issued, returnable to June Term, 1866, required the defendant to show cause why the plaintiff should not have his execution, etc. At September Term, 1866, upon motion, this writ was dismissed.

Upon appeal to the Superior Court, his Honor overruled the (294) motion to dismiss, and ordered a procedendo to issue to the county court, etc. Whereupon the defendant appealed to the Supreme Court.

Bragg for appellant.

No Counsel for appellee.

The order for a procedendo to the county court was erroneous, for the Whole case had been brought up into the Superior Court. Shoffner v. Fogleman, Bus., 280; Evans v. Governor's Creek Co., 5 Jon., 331; Morehead v. Atlantic N.C.R.R., 7 Jon., 500; Purvis v. Robinson, 4 Jon., 96.

PEARSON, C.J.

The merits of the case being disposed of in Mardre v. Felton, ante, 279, and (treating this as a motion, after notice, for an order to sell the land levied on), also in Riddick v. Hinton, ante, 291, Mr. Bragg insists there is error in awarding a procedendo to the county court.

We do not concur in that view. The appeal from the county to the Superior Court did not bring up the whole case, but only the motion for an order of sale, leaving the original judgment and levy in the county court, to which court the sheriff must make return, in order to have satisfaction of the judgment entered there. We are, therefore, of opinion that the further proceedings should be had in the county court, and that it was proper to award a procedendo. Morehead v. R. R. Co., 7 Jones, 500.

PER CURIAM. Judgment affirmed. Motion for an order of sale should be allowed. Issue a writ of procedendo.

(295)