McElrath v. . Butler

Supreme Court of North Carolina

McElrath v. . Butler

29 N.C. 398

DecidedAugust 5, 1847

StatusPublished

This text of 29 N.C. 398 (McElrath v. . Butler) 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.

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McElrath v. . Butler, 29 N.C. 398 (N.C. 1847).

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Opinion

It seems to us that the judge erred in reversing the first judgment given against Hugh McElrath by R. C. Pearson, for there was no petition nor prayer by Hugh McElrath that it should be vacated. It was not before the Court. Secondly. Hugh McElrath insisted that the judgment rendered against him by Walton was erroneous because he, Walton, had rendered it on the former judgment, which Hugh alleged was void as having been rendered against him without notice. The judge, we think, erred in reversing this judgment. The warrant on which the first judgment was rendered against Hugh McElrath was returned executed on him by the constable, but the constable neglected to sign his name to his return. We do not think that the judgment rendered by Pearson was void. If it was erroneous until it was reversed for error, it was good evidence for Walton to render the second judgment on. We think that the judgment of the Superior Court must be reversed and judgment on the recordari entered for the original plaintiff Butler.

PER CURIAM. Judgment accordingly.

Cited: Spillman v. Williams, 91 N.C. 489; Stafford v. Gallops,123 N.C. 23.

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It seems to us that the judge erred in reversing the first judgment given against Hugh McElrath by R. C. Pearson, for there was no petition nor prayer by Hugh McElrath that it should be vacated. It was not before the Court. Secondly. Hugh McElrath insisted that the judgment rendered against him by Walton was erroneous because he, Walton, had rendered it on the former judgment, which Hugh alleged was void as having been rendered against him without notice. The judge, we think, erred in reversing this judgment. The warrant on which the first judgment was rendered against Hugh McElrath was returned executed on him by the constable, but the constable neglected to sign his name to his return. We do not think that the judgment rendered by Pearson was void. If it was erroneous until it was reversed for error, it was good evidence for Walton to render the second judgment on. We think that the judgment of the Superior Court must be reversed and judgment on the recordari entered for the original plaintiff Butler.

PER CURIAM. Judgment accordingly.

Cited: Spillman v. Williams, 91 N.C. 489; Stafford v. Gallops,123 N.C. 23.

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29 N.C. 398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcelrath-v-butler-nc-1847.

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