Mckeithen v. Blue
| Decision Date | 11 November 1908 |
| Citation | 149 N.C. 95,62 S.E. 769 |
| Parties | McKEITHEN. v. BLUE. |
| Court | North Carolina Supreme Court |
1. Judgment (§ 853*)—Dormant Judgment.
An execution not sent out of the clerk's office, but only filled up by the clerk and memorandum of "execution made on the docket, is not issued as required by the statute, and does not prevent the judgment from becoming dormant.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1567; Dec. Dig. § 853.*]
2. Judgment (§ 863*) — Issuance — Objections.
A judgment defendant in a dormant judgment after issuance of execution may move either before the clerk or before the superior court, on rehearing of the homestead appraisement after the reversal of a judgment of allotment of homestead, that the judgment be adjudged dormant; there being nothing in the opinion of the court on the reversal of the judgment forbidding such a course.
[Ed. Note.—For other cases, see Judgment, Dec. Dig. § 863.*]
3. Execution (§ 275*) — Issuance — Time to Issue—Notice—Statutes.
Under Revisal 1905, §§ 619, 620, authorizing a party to proceed to enforce a judgment by execution within three years, and requiring notice to defendant before issuance of execution, where no execution has been issued within three years, the issuance of an execution after three years without notice is only an irregularity, and a sale without objection gives to a stranger purchasing without notice title to the property.
[Ed. Note.—For other cases, see Execution, Cent. Dig. § 793; Dec. Dig. § 275.*]
4. Execution (§ 102*) — Issuance — Irregularity—Waiver.
Where a judgment defendant appeared before the superior court in homestead appraisement proceedings and moved to set the same aside on the ground that he had not been notified of the time or place of appraisement without asserting that the execution was defective, he waived the irregularity that it was issued without notice to him, as required by Revisal 1905, § 620.
[Ed. Note.—For other cases, see Execution, Dec. Dig. § 102.*]
5. Execution (§ 102*)—Issuance—Irregularity—Waiver.
Where a judgment defendant waived the irregularity in the issuance of an execution arising from the failure to give him notice, as required by Revisal 1905, § 620, he could not repudiate the waiver without establishing the fact of payment of the judgment or some other defense on the merits, especially where the life of the judgment would otherwise expire.
[Ed. Note.—For other cases, see Execution, Dec. Dig. § 102.*]
Appeal from Superior Court, Moore County; Peebles, Judge.
Action by N. A. McKeithen against N. A. Blue. There was a judgment for plaintiff, and defendant appeals. Affirmed.
J. McN. Johnson, J. W. Hinsdale, Jr., and H. F. Seawell, for appellant.
U. L. Spence, W. J. Adams, and T. H. Calvert, for appellee.
The facts relevant to this controversy seem to be that in 1896 plaintiff ob tained a judgment against defendant for the sum of $610, and some interest, and same was duly docketed in Moore county on February 27, 1896. From the entry in the clerk's docket in said county, it appeared that executions were issued on this judgment at regular intervals, and within three years of each other, until December 30, 1905, when a final execution issued and was placed in the hands of the sheriff of said county, who proceeded to summons appraisers to lay off and allot defendant his homestead, as required by law. These appraisers allotted said homestead, finding an excess, and made return of their action pursuant to the statute. Thereupon defendant filed exceptions to said allotment, claiming that same was made in his absence, and without any notice to him of such proceedings. The exception was, in effect, overruled by the judge on a hearing had, and defendant appealed to this court. On such appeal it was held that the substantial wrong had been done defendant in allotting his homestead without giving him proper notice and opportunity to be present, and that the same amounted to reversible error and should be corrected. See McKeithen v. Blue, 142 N. C. 360, 55 S. E. 285. This opinion having been properly certified down, the matter came on for hearing at May term, 1907, of the superior court, before his honor, Peebles, J., when defendant, by his attorneys, moved, in effect, that the judgment be declared dormant and all executions therein be recalled, for that no executions had in fact issued on said judgment previous to that of December 30, 1905, since the rendition of the judgment, but that same had only been filled out by the clerk and filed in his office as memorandum, made on docket, execution, etc., from time to time, as indicated in the record, but that same had never been delivered to the sheriff or other executive officer, nor to any one for them. His honor, Judge Peebles, declined to consider this motion or suggestion, holding that the same was not relevant to any proceedings before him, and entered judgment pursuant to the opinion of the Supreme Court, setting aside the appraisement and appointing three commissioners to reallot the homestead. A writ therefore issued. The homestead was reallotted finding no excess of property subject to sale, and return made to court, and defendant filed exceptions to this reallotment, alleging various irregularities in the proceedings. In the meantime the defendant moved before the clerk to declare the judgment dormant, and to recall all executions issued on same, which was heard before the clerk in August, 1907, when judgment was rendered denying the motion, and defendant excepted and appealed to the judge. The cause then came on for hearing,...
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