Mccaskill v. Mckinnon Et Ux
| Decision Date | 16 November 1897 |
| Citation | 28 S.E. 265,121 N.C. 192 |
| Court | North Carolina Supreme Court |
| Parties | McCASKILL v. McKINNON et ux. |
Final Judgments—Foreclosure Proceedings— Limitation of Actions—Partial Payment.
1. A judgment rendered in foreclosure proceedings, and "retained for further directions, " is final as to adjudging the recovery of money, so that the running of limitations begins at the date of its rendition.
2. A partial payment of a judgment will not arrest the running of limitations.
Where the lien of a judgment has ceased, a motion to issue execution thereon will not be barred if execution has been regularly issued once in every three years.
4. An appeal from the refusal of a clerk to issue execution can be heard at chambers in another county.
Appeal from superior court, Richmond county; Coble, Judge.
Action by John C. McCaskill against J. M. McKinnon and wife. From an order denying plaintiff's motion for leave to issue execution, he appeals. Affirmed.
J. F. Payne, for appellant.
W. H. Neal, for appellees.
CLARK, J. Judgment was rendered at September term, 1886, in favor of the plaintiff against the defendants to recover the sum of $3,000 and interest, and decreeing the foreclosure of the mortgage which had been executed to secure the debt. At June term, 1887, the commissioner appointed under the decree of foreclosure made his report, which was confirmed, and he was directed to credit the aforesaid judgment with the sum of $1,500, realized at the foreclosure sale, and to make title to the purchaser. This was a motion under section 440 of the Code for leave to issue execution, made before the clerk of Richmond county on the 15th of February, 1897, and heard on appeal by the judge at chambers in Carthage, Moore county. The plaintiff contends that the judgment at September term, 1886, was interlocutory only, and that there was no final judgment till June term, 1897, and hence that he is not barred by the statute of limitations. Code, § 152 (1). But the judgment at fall term, 1886, was final as to adjudging the recovery of money, and it is only for the recovery of the unpaid part of the sum therein adjudged that execution is moved for. The judgment of September, 1886, was "retained for further directions, " and interlocutory only as to the foreclosure; and upon the final judgment rendered as to that at June term, 1897, no execution is now asked, or, indeed, could be asked. It was the conclusion of that matter, and left nothing which could be done by an execution, if issued...
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...statutes in Willard v. Wood, 164 U.S. 502-522, 17 Sup.Ct. 176, 41 L.Ed. 531; McAleer v. Clay County (C.C.) 38 F. 707; McCaskill v. Graham, 121 N.C. 192, 28 S.E. 265. Therefore the allegations of payments made, and of acknowledgment of the debt by defendant, are ineffective. This is practica......
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Olson v. Dahl
... ... limitations are tolled by a new promise or part payment. That ... rule has been held distinctly not to apply to judgments ... McCaskill v. McKinnon, 121 N.C. 192, 28 S.E. 265, 61 ... Am. St. 659; Taylor v. Spivey, 33 N.C. 427; ... McDonald v. Dickson, 87 N.C. 404; Niblack v ... ...
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Olson v. Dahl
...are tolled by a new promise or part payment. That rule has been held distinctly not to apply to judgments. McCaskill v. McKinnon, 121 N. C. 192, 28 S. E. 265,61 Am. St. Rep. 659;Taylor v. Spivey, 33 N. C. 427;McDonald v. Dickson, 87 N. C. 404;Niblack v. Goodman, 67 Ind. 174;McAleer v. Clay ......
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Davis v. Pierce
...class of decrees, being final in some respects and in others interlocutory, is recognized in the authority relied upon by the defendant, McGaskill, Adm'r, v. [121 N.C. 190, 28 S.E. 264], supra, where it is said by Furches, J.: 'The judgment of $754.93 was a personal judgment, and was final.......