Skinner v. Moore

• Decision Date: 31 December 1836
• Citation: Skinner v. Moore, 19 N. C. 138 (N.C. 1836)
• Parties: Den. ex dem. CHARLES W. SKINNER v. AUGUSTUS MOORE.
• Court: North Carolina Supreme Court

19 N.C. 138

Den. ex dem. CHARLES W. SKINNER

v.AUGUSTUS MOORE.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1836

1. A judgment rendered on an original attachment cannot be avoided or reversed, or treated as a nullity by a mere stranger, for error or irregularity in the proceedings, upon which the judgment was rendered.

2. Under Sec. 65 of the act of 1777 (Rev. ch. 115,) the county in which an attachment should issue, returnable to the County Court, is the county from which the debtor has removed, or is removing himself privately; and if it be issued and returned to the County Court of any other county where the debtor may have property, it may be abated by plea for want of jurisdiction as to the person; but if no such plea be put in, and the creditor obtains a judgment for his debt, the same being within the jurisdiction of the County Courts, such judgment will be valid and conclusive.

3. By our attachment law, a judgment obtained upon a proceeding in an original attachment, is placed upon the same footing with a judgment rendered in a Court of Record, according to the course of the common law. It cannot be collaterally impeached by evidence or by plea, except by a plea denying the existence of the record, and is conclusive until it be set aside by the same court, or reversed upon a writ of error or on appeal by a superior tribunal.

4. Where it appears from the record that the property attached is not the property of the debtor, the judgment thereon is absolutely null and void; for an appearance, or a service of process on the person or property of the defendant, is essential to the validity of every judgment; but the fact that the property attached was not that of the defendant, cannot be shown by evidence dehors the record; and the interlocutory judgment condemning the property attached as the property of the defendant, is as much conclusive as any other judgment, until it. be Bet aside or reversed.

5. An irregularity or defect in the affidavit upon which an attachment issued, if error at all, will not render the judgment void.

6. A judgment for a larger sum than that sworn to in the affidavit, is erroneous for the excess only.

7. A plaintiff in attachment who obtains a judgment, sues out execution thereon, and becomes the purchaser at the sheriff's sale, will not be affected by any irregularity in the suing out of the attachment, or any other proceeding prior to the judgment. The judgment is the act of the court, and is a sufficient authority for what is regularly, that is, according to the course of the court, done under it.

This was an action of ejectment brought to recover the possession of a house and lot in the town of Edenton, tried at Chowan, on the last Spring Circuit, before Dick, J.

The lessor of the plaintiff, after showing that thepremises described in his declaration, and then in the occupation of the defendant, had formerly belonged to one James R. Creecy, produced in evidence the copy of the record of a judgment, obtained against the said Creecy in the County Court of Perquimans county, in favour of himself. He then showed an execution issued on the said judgment, a sale by the sheriff, and a deed from the sheriff to himself as the purchaser.

From the record of the judgment it appeared that it was founded on an original attachment, issued by a justice of the peace of Perquimons county, on an affidavit of the plaintiff, stating "that James R. Creecy is justly indebted to him in the sum of two thousand two hundred and forty-eight dollars sixty cents, due by promissory note; that the said James R. Creecy hath so removed himself out of the county or so absconds or conceals himself, that the ordinary process of the law cannot be served on him." The attachment itself recited the oath as having been made "that the said James R. Creecy hath removed out of your county, or so absconds or conceals himself, that," &c. The sheriff returned the attachment with an endorsement that he had levied it "upon two hundred and twelve dollars with interest thereon from August 1827, in the hands of Josiah C. Skinner, due by a bond or note from said Josiah C. Skinner, to James R. Creecy, the defendant in this attachment, and I have summoned Josiah C. Skinner as garnishee, agreeable to act of assembly." Upon the return of the attachment to the County Court, the garnishee appeared and filed the following garnishment, to-wit: "Josiah C. Skinner garnisheed at the instance of Charles W. Skinner, against James R. Creecy, admits that he is indebted to James Creecy in the sum of two hundred and twelve dollars due by

bond or promissory note bearing date the —— day of ——, 1827, due six months after date, and that the same has not been paid by him. This affiant denies that he has any other effects of the said James R. Creecy in his hands. He further denies that he knows of any one who has now, or at the time of suing out the plaintiff's attachment, had any of the effects of the said James R. Creecy. This affiant further states that the aforesaid bond orpromissory note is payable to James T. Tredwell, and has been paid over to James R. Creecy, but whether assigned or endorsed by the payee or obligee this affiant knows not. This affiant states that he mentioned the payment of the said note to James R. Creecy, about two days before Creecy left Edenton, and said Creecy had the said note or bond then in his possession, and promised this affiant that he would surrender up the said note or bond, to Charles W. Skinner, for the benefit of this affiant, but where the note or bond now is, or what the said Creecy afterwards did with the said bond or note, this affiant is ignorant." The evidence of the plaintiff's claim was a promissory note in these words, to-wit:

"Edenton 26 March, 1829.

"On the first day of July next, 1 promise to pay Chas. W. Skinner, Esq., or order, two thousand four hundred and ninety-eight and sixty cents, in full, for his crop of cotton, with interest from the date hereof.

(Signed) "J. R. CREECY.

"Jo. C. Skinner's note to be deducted."

At the return term of the attachment, judgment by default was rendered against Creecy, and an order made for publication in the Elizabeth City Star, or Edenton Gazette for two months, and the cause was then continued. At the succeeding term, it appearing that publication had been made according to law, the court condemned the property attached for the payment of the plaintiff's debt and rendered a judgment final against Creecy for the sum of two thousand four hundred and ninety-eight dollars, and also one against the garnishee, J. C. Skinner, for two hundred and twelve dollars with interest from August, 1827. And on the judgment against Creecy the execution issued on which the house and lot in

question was sold, when the plaintiff became the purchaser as above stated.

In the course of the trial it appeared that James R. Creecy, at the time of his leaving the state, was not an inhabitant of Perquimons county, but was then, and had been formany years before, a resident of the town of Edenton, in the county of Chowan. It also appeared from the return made by the Sheriff of Chowan to the first execution which came to his hands on the aforesaid judgment against Creecy, that the house and lot in dispute had been conveyed by the said Creecy by a deed in trust for certain purposes.

For the defendant it was contended, that the proceedings on the original attachment, in the name of the lessor of the plaintiff, against Creecy, were irregular and void, and that the lessor of the plaintiff derived no title under his purchase and deed from the sheriff.

1st. Because the affidavit on which the attachment issued was too indefinite, inasmuch as it did not show whether Creecy had removed from the county, or whether he had absconded or concealed himself; and further that the affidavit stated that Creecy had removed himself out of the county, and to give the court jurisdiction, it should have stated that he had removed himself from the county.

2nd. That inasmuch as the judgment was for more than the amount sworn to in the affidavit, it was therefore irregular and void.

3rd. That the judgment was irregular and void, because judgment by default was rendered up, at the same term to which the attachment was returnable.

4th. That it appeared by the record that the note of Josiah C. Skinner, was entered as a credit on the note of Creecy to the plaintiff, and that it was therefore the property of the plaintiff, Charles W. Skinner, at the time the attachment issued, and consequently could not be attached as the property of Creecy, and made the foundation of proceedings against him; and that as no other property was attached, the court had no jurisdiction.

5th. That the judgment in Perquimons County Court did not authorise the levying a fieri facias on property not attached in Chowan county.

6th. That as the property levied on by the sheriff under

the first execution was covered by a deed in trust as appeared by the return of the sheriff, it was incumbent on the lessor of the plaintiff, to show that the trust had been satisfied or otherwise discharged, at the time the sherifflevied his execution under which the sale was made.

7th. That as it appeared in evidence that James R. Creecy was a resident citizen of Chowan county, at the time he left the state, and had been so resident for several years, no attachment could issue against him or his property in Perquimons county, and that such attachment could not be made returnable to the County Court of Perquimons.

His Honor held, "that as Charles W. Skinner was the plaintiff in the attachment, and also the purchaser at the sheriff's sale, he was affected with notice of any irregularity in suing out the attachment, or any of the subsequent proceedings thereon. That that court had a right to look into the proceedings on the attachment to see if they had been according to law, when the plaintiff in the attachment and the purchaser at the sheriff's sale, were one and the...