Evans v. Etheridge

• Decision Date: 03 March 1887
• Citation: 1 S.E. 633,96 N.C. 42
• Court: North Carolina Supreme Court
• Parties: EVANS v. ETHERIDGE.

96 N.C. 42

1 S.E. 633

EVANS

v.ETHERIDGE.

Supreme Court of North Carolina.

March 3, 1887.

Appeal from superior court, Dare county.

Grandy & Aydlett, for plaintiff.

Battle & Mordecai, for defendant.

MERRIMON, J.

The following is as much of the case stated on appeal as it is necessary to set forth here: “The plaintiff, who was the clerk of the superior court of Dare county, issued a summons in his own behalf against the defendant. Afterwards he made an affidavit before the clerk of the superior court of Pasquotank county for an attachment against the property of the defendant, and gave bond. He then issued a warrant of attachment to the sheriff of Dare county, commanding him to attach the property of the defendant in Dare county, to answer the judgment in the action. There was no evidence that the bond was approved or passed upon by the clerk of Pasquotank superior court. There was no order from the judge directing the case to be transferred to the clerk of the superior court of any other county, nor application made to any judge for such transfer. Upon this attachment, granted by the plaintiff as clerk of the superior court of Dare county, the sheriff attached the property of the defendant, and holds it. The defendant moved to dismiss the attachment upon the ground that the attachment was issued by the clerk in his own behalf, and was void because the proceedings before the clerk of the superior court of Pasquotank were without authority, and were void, and that, upon the whole record, the proceeding was irregular. The court, upon the whole record of the proceedings, gave judgment that the attachment be dismissed at the cost of the plaintiff, from which ruling the plaintiff appeals to the supreme court.”

It was held in Jackson v. Buchanan, 89 N. C. 74, that the clerk of the superior court, in making the order of seizure of property in the provisional remedy of claim and delivery, only does a ministerial, and not a judicial, act or service, and therefore a deputy-clerk might make such order. In such case the statute (Code, § 322) requires that an affidavit should be made before the clerk, embodying the facts necessary to entitle the party applying for it to the order; and section 323 prescribes that “the clerk of the court shall thereupon, by an indorsement in writing upon the affidavit, require the sheriff of the county, where the property claimed may be, to take the same from the defendant, and deliver it to the plaintiff,” etc.

In the provisional remedy of attachment, the clerk does, in all substantial respects, a similar ministerial service. The statute (Code, § 349) prescribes that the facts necessary to entitle the party applying for the warrant must appear by affidavit to the satisfaction of the court granting it, and section 351 provides that the warrant may then “be obtained from the judge of the district embracing the county in which the action has been instituted, or from the clerk of the superior court from which the summons in the action issued.” The acts thus required to be done, or that may thus be done by the clerk of the court, are not such as settle, determine, and adjudge the rights of the parties litigant. Their purpose is to grant,-supply...