Abernethy Land & Finance Co. v. First Security Trust Co.

Supreme Court of North Carolina

Abernethy Land & Finance Co. v. First Security Trust Co.

196 S.E. 340, 213 N.C. 369, 1938 N.C. LEXIS 90

CourtSupreme Court of North Carolina

DecidedApril 13, 1938

StatusPublished

Cited by25 cases

This text of 196 S.E. 340 (Abernethy Land & Finance Co. v. First Security Trust Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Abernethy Land & Finance Co. v. First Security Trust Co., 196 S.E. 340, 213 N.C. 369, 1938 N.C. LEXIS 90 (N.C. 1938).

Pincite

Opinion

Rarnhill, J.

An action in court is not ended by tbe rendition of a judgment, but in certain respects it is still pending until the judgment is satisfied. It is open to motion for execution, for tbe recall of an exe *372 cution, to determine proper credits and for other motions affecting the existence of the judgment or the amount due thereon. Mason v. Miles, 63 N. C., 564; Faison v. McIlwaine, 72 N. C., 312; Mann v. Blount, 65 N. C., 99; McIntosh, Prac, and Proc., sec. 991.

The court from which the execution issued may, for sufficient cause shown, recall or set aside an execution or a sale made thereunder and prevent further proceedings. This is properly done by a motion in the cause and not by an independent action. When the ground alleged for setting aside a judgment, or for cancelling the same of record, is not based upon fraud the proper remedy is likewise by motion in the cause. Foard v. Alexander, 64 N. C., 69; Chambers v. Penland, 78 N. C., 53; Parker v. Bledsoe, 87 N. C., 221; Henderson v. Moore, 125 N. C., 383; McIntosh, Prac. and Proc., sec. 735.

It is clear, then, that the plaintiff cannot maintain this action as an independent proceeding for two reasons: (1) This is an injunctive proceeding and the plaintiffs have an adequate remedy at law by motion in the cause, and (2) the relief sought must be obtained by motion in the original cause and not by independent action.

When, however, a party by mistake brings an independent action when his remedy is by motion in the original cause the court may, in its discretion, treat the summons and complaint as a motion. Jarman v. Saunders, 64 N. C., 367; Craddock v. Brinkley, 177 N. C., 125. In the administration of justice the courts look to the substance rather than to the form, and proceedings will not be dismissed upon mere technicalities when they may be properly retained for the adjudication of the issues raised. The summons and complaint herein should have been treated as a motion in the original cause, to the end that the issues raised by the pleadings may be determined and the rights of the parties adjudicated. The cause is remanded with directions that these proceedings be considered and treated as a motion in the original cause and the restraining order as recalling the execution pending the final determination of the motion. The clerk is not a proper party, and as to him the action should be dismissed. As the Consolidated Trust Company has assigned its judgment without recourse it is not a necessary party.

As the merits of the ease have not been determined by the court below, and the rights of the parties depend upon the nature and extent of the agreement entered into by and between the defendant administrator and the Consolidated Trust Company, we refrain from discussing the other questions of law raised in the briefs. It may be appropriate to say, however, that the present record does not disclose any judgments junior to the one obtained by the defendant administrator, and that if in fact the bid at the execution sale was $31,000, as contended by the plaintiffs, nothing else appearing, the plaintiffs, as a matter of law, are entitled *373 to bave tbe excess over and above tbe amount necessary to pay tbe judgment beld by tbe defendant administrator applied to tbe satisfaction of tbe judgment obtained by tbe Consolidated Trust Company.

It is ordered tbat tbis cause be remanded for further proceedings in accordance witb tbis opinion.

Eemanded.

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Rarnhill, J.

An action in court is not ended by tbe rendition of a judgment, but in certain respects it is still pending until the judgment is satisfied. It is open to motion for execution, for tbe recall of an exe *372 cution, to determine proper credits and for other motions affecting the existence of the judgment or the amount due thereon. Mason v. Miles, 63 N. C., 564; Faison v. McIlwaine, 72 N. C., 312; Mann v. Blount, 65 N. C., 99; McIntosh, Prac, and Proc., sec. 991.

The court from which the execution issued may, for sufficient cause shown, recall or set aside an execution or a sale made thereunder and prevent further proceedings. This is properly done by a motion in the cause and not by an independent action. When the ground alleged for setting aside a judgment, or for cancelling the same of record, is not based upon fraud the proper remedy is likewise by motion in the cause. Foard v. Alexander, 64 N. C., 69; Chambers v. Penland, 78 N. C., 53; Parker v. Bledsoe, 87 N. C., 221; Henderson v. Moore, 125 N. C., 383; McIntosh, Prac. and Proc., sec. 735.

It is clear, then, that the plaintiff cannot maintain this action as an independent proceeding for two reasons: (1) This is an injunctive proceeding and the plaintiffs have an adequate remedy at law by motion in the cause, and (2) the relief sought must be obtained by motion in the original cause and not by independent action.

When, however, a party by mistake brings an independent action when his remedy is by motion in the original cause the court may, in its discretion, treat the summons and complaint as a motion. Jarman v. Saunders, 64 N. C., 367; Craddock v. Brinkley, 177 N. C., 125. In the administration of justice the courts look to the substance rather than to the form, and proceedings will not be dismissed upon mere technicalities when they may be properly retained for the adjudication of the issues raised. The summons and complaint herein should have been treated as a motion in the original cause, to the end that the issues raised by the pleadings may be determined and the rights of the parties adjudicated. The cause is remanded with directions that these proceedings be considered and treated as a motion in the original cause and the restraining order as recalling the execution pending the final determination of the motion. The clerk is not a proper party, and as to him the action should be dismissed. As the Consolidated Trust Company has assigned its judgment without recourse it is not a necessary party.

As the merits of the ease have not been determined by the court below, and the rights of the parties depend upon the nature and extent of the agreement entered into by and between the defendant administrator and the Consolidated Trust Company, we refrain from discussing the other questions of law raised in the briefs. It may be appropriate to say, however, that the present record does not disclose any judgments junior to the one obtained by the defendant administrator, and that if in fact the bid at the execution sale was $31,000, as contended by the plaintiffs, nothing else appearing, the plaintiffs, as a matter of law, are entitled *373 to bave tbe excess over and above tbe amount necessary to pay tbe judgment beld by tbe defendant administrator applied to tbe satisfaction of tbe judgment obtained by tbe Consolidated Trust Company.

It is ordered tbat tbis cause be remanded for further proceedings in accordance witb tbis opinion.

Eemanded.

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196 S.E. 340, 213 N.C. 369, 1938 N.C. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abernethy-land-finance-co-v-first-security-trust-co-nc-1938.

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