Scott Register Co. v. . Holton

Supreme Court of North Carolina

Scott Register Co. v. . Holton

157 S.E. 433, 200 N.C. 478, 1931 N.C. LEXIS 365

CourtSupreme Court of North Carolina

DecidedMarch 18, 1931

StatusPublished

Cited by3 cases

This text of 157 S.E. 433 (Scott Register Co. v. . Holton) 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

Scott Register Co. v. . Holton, 157 S.E. 433, 200 N.C. 478, 1931 N.C. LEXIS 365 (N.C. 1931).

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Opinion

ClaeKSON, J.

We can see no error in the judgment of the court below. It has been said that an execution “is the end and life of the law,” and it is to give effect to the judgment on which it is issued. *480 Under C. S., 669, it is issued from and returned to court of rendition. Under the facts and circumstances of this case, we think defendant’s remedy was a motion in the cause before the clerk of the Superior Court of Guilford County, N. C., where the judgment was rendered. On the record, as it appears at the present time, we see no reason why defendant cannot now pursue that remedy.

Nash, J., in Greenlee v. McDowell, 39 N. C., at p. 484, said: “The Court can, and, upon a proper case made, supported by affidavits, will withdraw the process itself, or stay an execution by granting a super-sedeas.”

In Williams v. Durm, 158 N. C., at p. 401-2, we find: “The right to recall an execution by notice and motion in the court from which same was issued is usually the proper method of obtaining redress for irregularities affecting its validity. Aldridge v. Loftin, 104 N. C., 122; Beckwith v. Mining Co., 87 N. C., 155; Faison v. McIIwaine, 72 N. C., 312; Foard v. Alexander, 64 N. C., 69. The remedy will not usually be entertained or allowed after a sale had as against an innocent purchaser who was not a party to the proceedings, but against a party of record or a purchaser who buys with full notice, on motion made in apt time and in furtherance of right, both writ and sale may be quashed. (Saunders v. Ruddle, 17 and 18 Ky., 139; Van Campen v. Snyder, 4 Miss., 66), and by weight of authority, even after writ returned, 8 PI. and Pr., p. 470, citing Meyer v. Baker, 13 W. Va., 805, and other cases.” Williams v. Dunn, 163 N. C., 206; Banks v. Lane, 171 N. C., 505.

For the reasons given, the judgment' of the court below is

Affirmed.

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ClaeKSON, J.

We can see no error in the judgment of the court below. It has been said that an execution “is the end and life of the law,” and it is to give effect to the judgment on which it is issued. *480 Under C. S., 669, it is issued from and returned to court of rendition. Under the facts and circumstances of this case, we think defendant’s remedy was a motion in the cause before the clerk of the Superior Court of Guilford County, N. C., where the judgment was rendered. On the record, as it appears at the present time, we see no reason why defendant cannot now pursue that remedy.

Nash, J., in Greenlee v. McDowell, 39 N. C., at p. 484, said: “The Court can, and, upon a proper case made, supported by affidavits, will withdraw the process itself, or stay an execution by granting a super-sedeas.”

In Williams v. Durm, 158 N. C., at p. 401-2, we find: “The right to recall an execution by notice and motion in the court from which same was issued is usually the proper method of obtaining redress for irregularities affecting its validity. Aldridge v. Loftin, 104 N. C., 122; Beckwith v. Mining Co., 87 N. C., 155; Faison v. McIIwaine, 72 N. C., 312; Foard v. Alexander, 64 N. C., 69. The remedy will not usually be entertained or allowed after a sale had as against an innocent purchaser who was not a party to the proceedings, but against a party of record or a purchaser who buys with full notice, on motion made in apt time and in furtherance of right, both writ and sale may be quashed. (Saunders v. Ruddle, 17 and 18 Ky., 139; Van Campen v. Snyder, 4 Miss., 66), and by weight of authority, even after writ returned, 8 PI. and Pr., p. 470, citing Meyer v. Baker, 13 W. Va., 805, and other cases.” Williams v. Dunn, 163 N. C., 206; Banks v. Lane, 171 N. C., 505.

For the reasons given, the judgment' of the court below is

Affirmed.

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157 S.E. 433, 200 N.C. 478, 1931 N.C. LEXIS 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-register-co-v-holton-nc-1931.

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