Simpson v. . Sutton

61 N.C. 112

• Court: Supreme Court of North Carolina
• Decided: January 5, 1867
• Status: Published

Opinion

Reade, J.

Two questions are presented in this case:

1. The power of the court to allow the amendment asked by the plaintiff.

2. The effect of the amendment if made.

It is unnecessary to decide the first question, because the decision of the second disposes of the case.

The amendment, if made, would not avail the plaintiff. The time of issuing process is the time when it leaves the office. Boyden v. Odeneal, 1 Dev., 171. The time of issuing the first fi. fa. was Feb. 14th, 1865. The second. fi, fa. issued May 3d, 1866, more than a year and a day from the issuing of the first. And therefore the judgment was dormant.

It was insisted in the argument that if the first fi,. fa. were amended, so as to make it returnable to Fall, instead of Spring Term, 1865, the issuing of the second would be within a year and a day from the return of the first, and that “ the year and a day ” was to be counted from the return of the one to the issuing of the other. But that is not correct, for the statute (Rev. Code, c. 31, s. 109) admits of no doubt that “ the year and a day ” is to be counted, not from the return of one to the issuing of the other, but from the issuing of one to the issuing of the other.

There is no error.

Per Curiam. Judgment affirmed.