Morton v. Rippy

• Decision Date: 31 January 1881
• Citation: 84 N.C. 611
• Court: North Carolina Supreme Court
• Parties: B. F. MORTON and another v. LEONARD RIPPY and another.

84 N.C. 611

B. F. MORTON and another

v.LEONARD RIPPY and another.

Supreme Court of North Carolina.

January Term, 1881.

MOTION for leave to issue execution heard at Fall Term, 1880, of ALAMANCE Superior Court, before Eure, J.

A judgment recovered by the plaintiffs against the defendants before a justice of the peace was docketed in the superior court of Alamance on March 1st, 1869, and execution issued thereon on the 22d. It does not appear that any other ever issued. On the 22d of March, 1879, on application of the plaintiffs a notice signed by the clerk was delivered to the sheriff and made known to the defendants the next day reciting the motion for leave to issue execution on the judgment and appointing April 3d as the time when at his office the motion will be passed on and leave given unlest cause be shown to the contrary. The motion was allowed and upon the defendants' appeal the ruling of the clerk reversed. Upon the hearing before His Honor evidence was admitted to show the proceedings had before the justice and the irregularities and errors committed in rendering the judgment, the facts of which are found and set out in the transcript sent to this court, but not necessary to an understanding of the opinion. His Honor thereupon declared the justice's judgment to be “void and of no effect; that the transcript and docketing thereof does not constitute a proper judgment in the superior court,” and adjudged that it be cancelled and the defendant recover his costs, and the plaintiffs appealed.

Mr. E. S. Parker, for plaintiffs .

Mr. James E. Boyd, for defendants .

SMITH, C. J.

We do not concur in the ruling of the court that the judgment of the justice upon a matter within his general jurisdiction could be thus impeached, and the docketing thereof upon the transcript in regular form in the superior court assailed and avoided as a defence to an application for leave to enforce it. This is admissible only before the tribunal which tried the cause and gave the judgment. Such, it has been repeatedly held, is the orderly and only mode of procedure for relief against it. The judgment and the original papers in the cause remain in the court of the justice, notwithstanding the sending up the transcript and docketing in the superior court for the purpose of execution there. The cause itself can only be removed to that court by appeal or a writ of recordari as its substitute. Ledbetter v. Osborne, 66 N. C., 379. Speaking of this case in delivering the opinion in Birdsey v. Harris, 68 N. C., 92, SETTLE, J. says: “It is there held that when a judgment was obtained before a justice of the peace and docketed in the office of the superior court clerk, the court has no power upon motion to set aside said judgment and enter the cause upon the civil issue...