Pate v. Harper

• Decision Date: 28 February 1886
• Citation: 94 N.C. 23
• Court: North Carolina Supreme Court
• Parties: STATE ex rel. McD. PATE & CO. v. LUBY HARPER et als.

94 N.C. 23

STATE ex rel. McD. PATE & CO.

v.LUBY HARPER et als.

Supreme Court of North Carolina.

February Term, 1886.

CIVIL ACTION, tried before Connor, Judge, and a jury, at Fall Term, 1885, of GREENE Superior Court.

There was a judgment for the defendants, and the plaintiffs appealed.

The facts are fully stated in the opinion.

Mr. Geo. M. Lindsay, for the plaintiffs .

Mr. Geo. V. Strong, for the defendants .

SMITH, C. J.

The plaintiffs' attorney, on their behalf, sued out of the Superior Court of Greene county, and on December 30th, 1884, placed in the hands of R. A. Edwards, a deputy of the defendant Luby Harper, acting sheriff of the county, an execution against John T. Parker, issued upon a judgment recovered by the plaintiffs against him in the sum of $25.70, with interest from December 9th, 1881, and costs, and duly docketed in said court, with direction to lay off the defendant's exemption, and proceed to collect. The deputy accordingly summoned appraisers, who, on December 31st, laid off the debtor's personal property as exempt from execution, and of the value of $150, and returned a descriptive list of the exempt articles on January 5th, 1885, into the office of the Superior Court Clerk, who made a minute thereof on the judgment roll in the action, and the same was duly registered. There were omitted from the allotment two mules and a wagon, the ownership of which the debtor disclaimed, as he had conveyed this property by a mortgage, which, in the argument, it was said had not been registered. Thereupon the plaintiffs' attorney directed the deputy to seize and sell these articles, which he did seize, and the debtor demanded that his personal property exemption be laid off. Accordingly, the deputy again called the same appraisers together, and they again made out a descriptive list, including the mules and wagon, and the officer made return of the process to the office on January 12th, 1885, with the following endorsement: “Executed by levy upon the personal property and setting apart to him his personal property exemption. No excess and no other property out of which to satisfy this execution belonging to the defendant to be found in my county. January 12, 1885.”

The deputy, when required, refused to sell the mules and wagon, or any one of them, to satisfy the writ, and to recover damages for this neglect and alleged breach of the conditions of the sheriff's official bond, the present action is brought against him and the other defendants who are the sureties thereon.

The matters in controversy upon the pleadings, are embodied in three issues, of which two were offered by the defendants, and the third added by the Court; those proposed by the plaintiffs having been refused:

1. Did John T. Parker demand that his personal property exemption be laid off, before the commissioners first laid it off?

2. Did he demand that his personal property exemption be laid off before the commissioners laid it off the second time?

3. Did he select the articles laid off to him the second time?

The jury responded in the negative to the first and third issues, and in the affirmative to the second.

The subject matter of contest before the jury, was whether the allotment of exempt articles was first made by the debtor's demand, or was the voluntary act of the appraisers, done by the direction of the plaintiffs' attorney, upon which its efficacy as a legal allotment was supposed to depend; and here the principal objection to the ruling insisted on, is the validity and conclusive effect...