Webb v. Comm'rs. of the Town of Beaufort

70 N.C. 307

• Court: Supreme Court of North Carolina
• Decided: January 5, 1874
• Status: Published

Opinion

Rbade, J.

When the demand, in this case the debt, of the •plaintiff is ascertained by the j udgment of a Court of competent jurisdiction, a peremtory mandamus may be asked for. Lutterloh v. Board of Commissioners of Cumberland County, 65 N. C. R., p. 403. This would probably not be controverted, but the demurrer is upon the ground, that the judgment which ascertained the plaintiff’s debtis dormant. Take that to be so ; still a dormant j ndgment is evidence of indebtedness, and of the amount of indebtedness, just, as well as a judgment not dormant, and may be enforced as well, but not in the same way. The one by execution the other by action to revive. If the plaintiff’s judgment were alive, he would have no remedy to enforce it by execution because the defendant has nothing which an execution can reach. And as he would have to rerort to the present remedy by mandamus, there is error in sustaining the demurrer and dismissing the action.

Let this be certified.

Per Curiam. Judgment reversed.