Isler v. . Kennedy

Supreme Court of North Carolina

Isler v. . Kennedy

64 N.C. 530

CourtSupreme Court of North Carolina

DecidedJune 5, 1870

StatusPublished

Cited by1 cases

This text of 64 N.C. 530 (Isler v. . Kennedy) 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

Isler v. . Kennedy, 64 N.C. 530 (N.C. 1870).

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Opinion

Dick, J.

When a sheriff receives an execution, he should levy upon and sell the property of the defendant, or render a sufficient excuse in his return, for not performing his duty. What is a due return of process in form and substance, is a question of law, to be decided by the Court.

In our case the return endorsed on the execution was : “ Levied this ft. fa. on the 16th of March, 1867, on the plantation, &c., of the defendant; no sale, in obedience to Order, No. .10 from General Daniel E. Sickles.” As the State was then under military control, the sheriff was bound to obey General Orders, and the question of law for us to decide is, was the enforcement of this execution prohibited by said orders. General Orders, No.10, may be found ante 105; and paragraphs Nos. 2 and-4 are. applicable to the matter before us.

The bond which constituted the cause of action, was dated April 25th 1866, and the enforcement of the judgment was not prohibited by paragraph 2, and was expressly allowed by paragraph 4. For the purposes of said order the bond was the cause of action, and the date of the bond was the proper guide to the sheriff as to his duty in this respect: Dean v. King, 13 Ire. 20. The case of Patton v. Marr, Bus. 377, is not in point. In that case the Court decided that u Enjoined” endorsed on an execution, although informal, was a *532 due return. That word indicated with sufficient certainty,, that the execution was stayed by the order of a Court of' Equity, and the sheriff had no discretion, but was bound to • desist from the execution of the process, or incur the penalties of a contempt: Edney v. King, 4 Ire. Eq. 465.

The evidence of John Everett was clearly inadmissible,, and ought to have been rejected: as the consideration of the bond sued on could not be inquired into in determining the question of law before the Court.

The sheriff, by improperly enquiring into the consideration of the bond, went out of the line of his duty, and gave an improper construction to said order; and he thereby incurred a penalty for not making a due return of the process. There Was error in the ruling of his Honor, and the judgment'must be reversed.

Let this be certified.

Per Curiam. Judgment reversed..

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Dick, J.

When a sheriff receives an execution, he should levy upon and sell the property of the defendant, or render a sufficient excuse in his return, for not performing his duty. What is a due return of process in form and substance, is a question of law, to be decided by the Court.

In our case the return endorsed on the execution was : “ Levied this ft. fa. on the 16th of March, 1867, on the plantation, &c., of the defendant; no sale, in obedience to Order, No. .10 from General Daniel E. Sickles.” As the State was then under military control, the sheriff was bound to obey General Orders, and the question of law for us to decide is, was the enforcement of this execution prohibited by said orders. General Orders, No.10, may be found ante 105; and paragraphs Nos. 2 and-4 are. applicable to the matter before us.

The bond which constituted the cause of action, was dated April 25th 1866, and the enforcement of the judgment was not prohibited by paragraph 2, and was expressly allowed by paragraph 4. For the purposes of said order the bond was the cause of action, and the date of the bond was the proper guide to the sheriff as to his duty in this respect: Dean v. King, 13 Ire. 20. The case of Patton v. Marr, Bus. 377, is not in point. In that case the Court decided that u Enjoined” endorsed on an execution, although informal, was a *532 due return. That word indicated with sufficient certainty,, that the execution was stayed by the order of a Court of' Equity, and the sheriff had no discretion, but was bound to • desist from the execution of the process, or incur the penalties of a contempt: Edney v. King, 4 Ire. Eq. 465.

The evidence of John Everett was clearly inadmissible,, and ought to have been rejected: as the consideration of the bond sued on could not be inquired into in determining the question of law before the Court.

The sheriff, by improperly enquiring into the consideration of the bond, went out of the line of his duty, and gave an improper construction to said order; and he thereby incurred a penalty for not making a due return of the process. There Was error in the ruling of his Honor, and the judgment'must be reversed.

Let this be certified.

Per Curiam. Judgment reversed..

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