Whitehead v. Hellen
| Decision Date | 31 January 1876 |
| Citation | 74 N.C. 679 |
| Parties | WILLIAM WHITEHEAD v. JOHN F. HELLEN. |
| Court | North Carolina Supreme Court |
A sheriff may return an execution before the return term thereof, if it be satisfied, or if there can be no property found, out of which to satisfy the same.
( Hutchinson v. Symons, 67 N. C. Rep. 156, cited and approved.)
This was a Proceeding supp??ertal to execution, heard before Moore, J., at Spring Term, 1875, of PITT Superior Court, upon appeal from an order of the Probate Court.
Two judgments were rendered against the defendant and in favor of the plaintiff at Fall Term, 1874, amounting in the aggregate sums thereof, to about $1,000, which judgments were regularly docketed in the Superior Court of said county, and executions issued thereon from Fall Term, 1874, returnable to Spring Term, 1875. These executions were returned on the -- day of November, 1874 “unsatisfied,” and shortly thereafter, to-wit, on the 14th day of November, the plaintiff made affidavit before the clerk as the foundation of these proceedings.
The clerk issued his order for the examination of the judgment debtor, returnable before him on the 18th day of November, 1874, and the hearing was on that day continued until the 20th of November, at which time the defendant appeared with counsel and moved to dismiss the proceeding, for the reason that the executions against the defendant, upon which the proceeding was based, were unduly returned, in that they should not have been returned until the regular term of the court to which they were made returnable, to-wit, Spring Term, 1875, and the sheriff was bound to hold the executions until the actual meeting of the court, and had no right to return them before.
To sustain this motion, the court allowed the defendant to prove by the deputy sheriff, that at the time the sheriff made the return on the executions, he had seized under other and older executions, and then had in his possession, eight bales of cotton, an old iron safe and a wardrobe, the property of the defendant.
Upon the cross examination it appeared that the property seized did not exceed in value $550, and that it was all that could be found belonging to the defendant, after allotting his personal property exemption. It also appeared, that the older executions under which the property had been seized, amounted to more than $900.
The clerk sustained the motion of the defendant and dismissed the proceeding, from which ruling the plaintiff appealed.
The appeal was heard before Hillia??d, J., at Chambers, on the 15th day of December, 1875, and upon the hearing the defendant produced the notice served upon the plaintiff, to the effect that he should move the conrt to set aside the return of the sheriff, upon said execution.
Upon the hearing of this motion the defendant offered to prove that there was collusion between the plaintiff and the sheriff in making said returns. The court refused to hear the evidence, holding that the court must decide the case upon the record.
After argument the court dismissed the proceeding and remanded the case to be proceeded with according to law.
On the -- day of January, 1875, after notice to both parties, the case came on for a hearing in the Probate Court, when the defendant appeared and renewed the motion to dismiss upon the grounds aforesaid, producing a notice served upon the plaintiff to the effect that he would move the court to set aside the said returns of the sheriff; and upon this requested the court to hear evidence in support of the motion.
The clerk overruled the motion to dismiss and proceeded to examine the judgment debtor, who admitted under oath that James H. Hellen owed him $41.50, Kinchen Jenkins $95, E. L. Laughinghouse $85, Wiley Clark $1,100, N. R. Covey $10, and T. J. Smith $20.
The clerk thereupon ordered that J. A. Sugg be appointed receiver of the property and effects of the defendant, the judgment debtor, and that said receiver be invested with the usual rights and powers of receivers.
From this order, and the ruling, refusing to dismiss the proceeding, the defendant appealed to the Superior Court.
The case was heard upon appeal before Moore, J., at Spring Term, 1875, when the defendant again moved the court to dismiss the proceeding upon the...
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Davelaar v. Schneck
...harmony with the practice well known to the profession in this state. See 3 Freem. Ex'ns, § 353, and cases cited on page 2019; Whitehead v. Hellen, 74 N. C. 679;Findley v. Smith, 42 W. Va. 299, 26 S. E. 370;Manufacturing Co. v. Shatto (C. C.) 34 Fed. 380;Gurney v. Moore, 131 Mo. 650, 32 S. ......
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Curtis v. Morton
...recourse to other remedies." In cases involving relief supplemental to execution, the same rule has been applied. Thus in Whitehead v. Hellen, 74 N. C. 679. where an execution, issued at the fall term, 1874, and returnable at the spring term, 1875, was returned in November, 1874, unsatisfie......