Opinion · Supreme Court of North Carolina

Atkin v. . Mooney

61 N.C. 31

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1866-06-05
Topic
general

Read®, J. The defendant sued out an execution against the petitioner, in another proceeding between them, and whilst it was in the hands of the sheriff, the petitioner paid it off to him, and took a receipt in full, and the sheriff returned the execution ££ satisfied.” Subsequently, the sheriff obtained leave of the court to amend his return, which he did as follows: “ Received from the defendant [the present petitioner] Confederate money on the debt, which the plaintiff refuses to take, therefore the sale is not satisfied, and the same is returned, that an alias may issue to sell the land.” An alias did issue, and the sheriff levied on the property of the petitioner,.who was the defendant in that suit. Thereupon-the petitioner filed his petition for a certiorari and supersedeas, and obtained the same. Upon the return of the petition and'' proceedings into court, his Honor dismissed the petition ; from which order the petitioner appealed. The case does not state the grounds upon which the petition was dismissed, and we are left to collect from the whole case whether it ought to have been dismissed, or placed upon the trial-docket.

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Cited by
2 opinions
ATKINv. MOONEY,61 N.C. 31(1866)
W. H. ATKIN v. ADOLPHUS MOONEY.
Supreme Court of North Carolina
(June Term, 1866.)
1. Where a sheriff, having first returned an execution "satisfied," afterwards, with leave of court, amended the return thus: "Received from the defendant Confederate money for the debt, which the plaintiff refuses to take, therefore the sale is not satisfied, and the same is returned, that analiasmay issue to sell the land"; and then taking out suchalias, levied upon the land:Held, that the petition of the defendant in such execution, praying for acertiorariandsupersedeas, ought not to have been dismissed, but should have been placed upon the trial docket.

2. A plaintiff has a right to instruct a sheriff to collectin specie;but the latter, in the absence of instructions to the contrary, is justified in receivingcurrency, i. e., whatever is passing currently, in payment of the debts of the character of that which he has to collect.

(The casesDickerson v. Lippitt, 5 Ire., 560, andGovernor v. Carter, 3 Hawks, 328, cited and approved.)
PETITION for acertiorari, brought up by an appeal from an order dismissing the petition, made byOsborne, J., at Fall Term, 1864, of RUTHERFORD Superior Court.
The proceedings in the courts below are sufficiently stated in (32) the opinion.Page 46
Logan for petitioner.Bynum for defendant.
READE, J.
The defendant sued out an execution against the petitioner, in another proceeding between them, and whilst it was in the hands of the sheriff, the petitioner paid it off to him and took a receipt in full, and the sheriff returned the execution "satisfied." Subsequently, the sheriff obtained leave of the court to amend his return, which he did as follows: "Received from the defendant (the present petitioner) Confederate money on the debt, which the plaintiff refuses to take, therefore the sale is not satisfied, and the same is returned, that analiasmay issue to sell the land." Analiasdid issue, and the sheriff levied on the property of the petitioner, who was the defendant in that suit. Thereupon the petitioner filed his petition for acertiorariandsupersedeas, and obtained the same. Upon the return of the petition and proceedings into court, his Honor dismissed the petition, from which order the petitioner appealed.

The case does not state the grounds upon which the petition was dismissed, and we are left to collect from the whole case whether it ought to have been dismissed or placed upon the trial docket.

It was clearly within the power of the county court to allow the sheriff to amend his return.Dickinson v. Lippitt, 5 Ire., 560. So much of the case therefore must stand upon the return as amended.

Again, a plaintiff has the right to instruct the sheriff to collect in specie, but without such instructions the sheriff may collect in currency.Governor v. Carter, 3 Hawks, 328. A sheriff, in the absence of (33) instructions to the contrary, would be justified in receiving what was passing currently in payment of debts of the character which he had to collect. Yet there must be some limit to this discretion of the sheriff, for if he receive funds which are so much depreciated that it would amount to notice that the plaintiff would not receive them,hewould be liable to the plaintiff in the execution.

How the facts were in this case we are not informed. We do not know whether Confederate money was current in the payment of such debts as the sheriff held for collection or not. And these facts are necessary to determine the liability of the sheriff to the plaintiff in the execution. But they are not necessary to determine the present case, because the extent of the sheriff's liability is not the question before us. That question is: Had the execution been satisfied, so far as the petitioner is concerned? He had paid the sheriff in funds which the latter received without objection, and these funds have never been returned or offered to be returned, so far as we are informed. The petitioner has a receiptPage 47in full for the debt, and outside of the declarations of the sheriff, it does not appear that he did not pay in good money.

We are therefore of opinion that the petition in this case ought not to have been dismissed, but should have been placed upon the trial docket, so that the question as to the satisfaction of the execution by the petitioner may be properly raised and decided.

PER CURIAM. Judgment reversed.Cited: Emerson v. Mallett,62 N.C. 236;Barham v. Gregory, ibid., 249;McKay v. Smitherman,64 N.C. 50;Baird v. Hall,67 N.C. 233;Utley v.Young,68 N.C. 391;Melvin v. Stevens,84 N.C. 82.Dist.: Greenlee v. Sudderth,65 N.C. 473;Purvis v. Jackson,69 N.C. 480.

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