Cowles v. . Hall

Supreme Court of North Carolina

Cowles v. . Hall

18 S.E. 329, 113 N.C. 359

CourtSupreme Court of North Carolina

DecidedSeptember 5, 1893

StatusPublished

Cited by1 cases

This text of 18 S.E. 329 (Cowles v. . Hall) 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

Cowles v. . Hall, 18 S.E. 329, 113 N.C. 359 (N.C. 1893).

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Opinion

MacRae, J.:

The statute of limitations, chapter 3, section 151 of The Code, is: “The periods prescribed for the commencement of actions, other than for the recovery of real property, shall be as follows: * * * Section 155 (8). Fees due to any Clerk, Sheriff, or other officer, by the judgment of a Court, within three years from the judgment rendered or of the issuing of the last execution therefor.” This statute, as will be seen, regulates the time for the commencement of actions. But the present proceeding, while not stated in the case with ordinary clearness,' was evidently a motion for leave to issue execution under section 440 of The Code, for by reference to the record it will so appear.

His Honor held that the collection of plaintiff’s judgment is barred by the statute of limitations. The record shows that a part of the judgment was for fees due the officers of the Court, but the judgment was in favor of the plaintiff, upon the presumption that he had paid the costs for which he was liable, as they accrued, and he was entitled to recover the same from defendant. As this is not an action by any officer to recover fees due him by the judgment of a Court, we are of the opinion that the section of the statute of limitations relied on by defendant does not apply to this proceeding.

His Honor also held “ that the plaintiffs are not entitled to a renewal of their judgment, as to an execution upon the same.” We concur with his Honor that plaintiffs are not entitled to leave to issue execution upon their judgment. The motion seeks to have execution against the estate of a deceased person upon a judgment rendered against such per *361 son during his life. The Gjde, chapter 33, provides elaborately for the settlement of estates of deceased persons; section 1416 prescribes the order of payment of the debts, including judgments, and-section 1448 et scq, prescribes the proceeding by which creditors may enforce payment of the debts due them. "While, therefore, the plaintiffs are not barred by section 155 (8) from proper proceedings to enforce their claim (the same being in favor of plaintiffs in the action, and not of the officers of the Court), they are not entitled to leave to issue execution. Modified and Affirmed.

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MacRae, J.:

The statute of limitations, chapter 3, section 151 of The Code, is: “The periods prescribed for the commencement of actions, other than for the recovery of real property, shall be as follows: * * * Section 155 (8). Fees due to any Clerk, Sheriff, or other officer, by the judgment of a Court, within three years from the judgment rendered or of the issuing of the last execution therefor.” This statute, as will be seen, regulates the time for the commencement of actions. But the present proceeding, while not stated in the case with ordinary clearness,' was evidently a motion for leave to issue execution under section 440 of The Code, for by reference to the record it will so appear.

His Honor held that the collection of plaintiff’s judgment is barred by the statute of limitations. The record shows that a part of the judgment was for fees due the officers of the Court, but the judgment was in favor of the plaintiff, upon the presumption that he had paid the costs for which he was liable, as they accrued, and he was entitled to recover the same from defendant. As this is not an action by any officer to recover fees due him by the judgment of a Court, we are of the opinion that the section of the statute of limitations relied on by defendant does not apply to this proceeding.

His Honor also held “ that the plaintiffs are not entitled to a renewal of their judgment, as to an execution upon the same.” We concur with his Honor that plaintiffs are not entitled to leave to issue execution upon their judgment. The motion seeks to have execution against the estate of a deceased person upon a judgment rendered against such per *361 son during his life. The Gjde, chapter 33, provides elaborately for the settlement of estates of deceased persons; section 1416 prescribes the order of payment of the debts, including judgments, and-section 1448 et scq, prescribes the proceeding by which creditors may enforce payment of the debts due them. "While, therefore, the plaintiffs are not barred by section 155 (8) from proper proceedings to enforce their claim (the same being in favor of plaintiffs in the action, and not of the officers of the Court), they are not entitled to leave to issue execution. Modified and Affirmed.

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18 S.E. 329, 113 N.C. 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cowles-v-hall-nc-1893.

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