Bailey v. . Hester

8 S.E. 164, 101 N.C. 538

• Court: Supreme Court of North Carolina
• Decided: September 5, 1888
• Status: Published

Opinion

Smith, C. J.

(after stating the case.) While the proceedings before a Justice in a civil action are not strictly a record, as declared in State v. Green, 100 N. C., 419, they yet possess very many of the attributes of a record under existing legislation. They (the Justices) are furnished with criminal and civil dockets in which must be entered a minute of every proceeding had before him (The Code, §831); when filled snch dockets must be filed with the Clerk, and if incomplete when he goes out of office delivered over to his successor (§§ 827 and 828); and indeed he acts in the trial of causes and issues in enforcing process throughout as do other regularly constituted judicial tribunals. As he may issue execution after judgment unless the cause has been removed to and docketed in the Superior Court, we can see no reason why he may not recall an execution which improvidently issues after the plaintiff has received payment, or for other sufficient cause, and in a proper case have satisfaction entered on his docket, so that the fact is patent to him or to his successor and the debtor freed from the annoyance of other executions.

This results from several adjudications in which it is held that the judgment rendered by a Justice, though transferred to the docket of the Superior Court and there becomes a judgment also fur the purpose of enforcement, remains as before when to be impeached, modified or reversed. Bidsey v. Harris, 68 N. C., 92; Broyles v. Young, 81 N. C., 315; Morton v Rippy, 84 N. C., 611, authorities furnished in the brief of counsel.

But the Judge further holds that the deputy, though having in his hands the judgment and assuming the right to receive payment, had in law no such authority, and unless as agent of the plaintiff, irrespective of office, he made the collection — of which the affidavit contained no proof — it would be an officious and inoperative act, and defendant’s liability would remain.

It is only by a judicial mandate issued from the- proper judicial source that the Sheriff or other officer could proceed to collect and acquit the debtor. Mills v. Allen, 7 Jones, 564.

The Court, therefore, properly gave judgment against the defendant, not in dismissing the appeal, but in denying the motion upon its merits.

As the same judgment refusing the defendant’s application was made in each of the Courts, the same consequences follow, whether the motion was denied or the appeal dismissed.

Affirmed.