Williams v. Weaver

• Decision Date: 16 October 1888
• Citation: 7 S.E. 565,101 N.C. 1
• Court: North Carolina Supreme Court
• Parties: Williams v. Weaver.

7 S.E. 565

(101 N.C. 1)

Williams

v.Weaver.

Supreme Court of North Carolina.

October 16, 1888.

Execution—Return of Sheriff—Amendment.

A sheriff; who, through excusable inadvertence, has omitted to note on an execution the date of its delivery to him, and in his return has stated that he did not collect a certain sum, "which was deducted and allowed by the attorney general, " when, in fact, the allowance was made by the clerk of the supreme court, will be permitted to amend the return in accordance with the facts.¹

Appeal from superior court, Hertford county.

On motion of J. S. Mitchell, sheriff, made before the supreme court, to amend return of execution.

Merrimon, J. In this case an execution issued from this court, directed and delivered to the sheriff of the county of Hertford, made returnable to the October term, 1886, thereof. The sheriff failed to note thereon the date of its delivery to him, as required by the statute, Code, § 100. In his return of the same, by inadvertence, he set forth that he did not collect the sum of $8.40; which sum, as stated in his return, "was deducted and allowed by attorney general, " whereas he should have said, "was deducted and allowed by the clerk of the supreme court." The present application is made by the sheriff to be allowed to amend his return so as to specify on the execution the time when it went into his hands; and also that he failed to collect the sum of $8.40 as therein required, because "it was deducted and allowed by the clerk of the supreme court." The power of this court to allow the sheriff or other officer to amend and correct his return of its process, as to errors occasioned by mere inadvertence or correct mistakes, so as to make it speak the truth as to what was done or omitted to be done by the officer in its execution, is essential and inherent, but it should be exercised with care and much caution. The court should be fully satisfied that the application to amend is made in good faith, and that the proposed amendment is warranted by the facts. It is ever the purpose of the law, in the course of its application, to ascertain and establish the truth in its judgments and proceedings; and to this end its courts, in their nature, have ample power, which they will exercise as far as they can, consistently with rules of just procedure and the rights of parties. Such power has oftentimes been exercised here, and the frequent exercise of the like power by the superior courts has been scrutinized and affirmed by many decisions of this court. Smith v. Daniel, 3 Murph. 128; Davidson v. Cowan, 1 Dev. 304; Purcell v. McFarland, 1 Ired. 34; Dickinson v. Lippitt, 5 Ired. 560; Williams v. Sharpe, 70 N. C. 582; Peebles v. Newsom, 74 N. C. 473; Walters v. Moore, 90 N. C. 41. The evidence fully satisfies us that the sheriff omitted to make the entry on the execution, and made the mistake in his return, which he asks leave to correct, by excusable inadvertence. The entry and correction cannot prejudice the...