Miller v. . Gibson

Supreme Court of North Carolina

Miller v. . Gibson

63 N.C. 635

DecidedJune 5, 1869

StatusPublished

This text of 63 N.C. 635 (Miller v. . Gibson) 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

Miller v. . Gibson, 63 N.C. 635 (N.C. 1869).

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Opinion

Reade, J.

It is not insisted that there was any irregularity in entering judgment — it was by confession — or in the issuing or levying of the fi.fa. After ten days from the rendition of the judgment, the whole matter was beyond the control of the magistrate; he had no power to set it aside, or to grant an appeal. Rev. Code, ch. 62, s. 26.

But it is insisted that while that was so under the law as it existed at the time of the rendition of the judgment (March 18th 1869), yet that on the 22nd March 1869, the Legislature passed .an act commonly called the magistrate's stay-law which (s. 8) .authorized the magistrate, on application of the defendant, to .set aside the judgment and fi. fa, and stay proceedings, &c. This provision in said act is void, for the reason that it directs dhe magistrate to destroy vested rights. Constitution, Art. I, s. 17. The levy of th o¡ fi.fa., which was prior to the passage •of the act, created a lien upon the debtor’s property in favor •of the creditor, and it was not in the power of the Legislature to destroy the lien. We agree with his Honor below. The •appeal will be dismissed, and judgment here against the •.defendant for costs. See Murphy v. Merritt at this term.

Per Curiam. Appeal dismissed.

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Reade, J.

It is not insisted that there was any irregularity in entering judgment — it was by confession — or in the issuing or levying of the fi.fa. After ten days from the rendition of the judgment, the whole matter was beyond the control of the magistrate; he had no power to set it aside, or to grant an appeal. Rev. Code, ch. 62, s. 26.

But it is insisted that while that was so under the law as it existed at the time of the rendition of the judgment (March 18th 1869), yet that on the 22nd March 1869, the Legislature passed .an act commonly called the magistrate's stay-law which (s. 8) .authorized the magistrate, on application of the defendant, to .set aside the judgment and fi. fa, and stay proceedings, &c. This provision in said act is void, for the reason that it directs dhe magistrate to destroy vested rights. Constitution, Art. I, s. 17. The levy of th o¡ fi.fa., which was prior to the passage •of the act, created a lien upon the debtor’s property in favor •of the creditor, and it was not in the power of the Legislature to destroy the lien. We agree with his Honor below. The •appeal will be dismissed, and judgment here against the •.defendant for costs. See Murphy v. Merritt at this term.

Per Curiam. Appeal dismissed.

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Bluebook (online)

63 N.C. 635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-gibson-nc-1869.