27 N.C. 560 | N.C. | 1845
Motion to permit the sheriff to amend his return on a writ of fi. fa. that he levied and sold certain property, and to substitute in lieu of said return a return that no property, of the defendant could be found. It appeared that an execution in this case issued against the defendant, which was levied on certain goods as the property of the defendant, and these goods were subsequently claimed by one Benjamin Tyler. The sheriff sold the goods as the property of the defendant, Lippitt, when one George W. Davis became the purchaser. On this execution, returnable to March Term, 1835, of the Court of Pleas and Quarter Sessions for the county of New Hanover, the sheriff made the following return: "Satisfied by sale of turpentine (561) agreeably to the annexed account of sales; judgment and interest paid to the plaintiff, M. Costin, and costs paid into office. C. B. *394
Morris, Sheriff." The plaintiff gave notice to the defendant, twenty days or more before the March Term, 1843, of the said court, that he would move the court for leave, at that term, for the sheriff to amend his return by striking out the return just mentioned and inserting, in lien thereof, nuncpro tunc, "no goods or chattels, lands or tenements of the defendant to be found in my county." At June Term, 1843, of the said court, the court directed the sheriff to amend accordingly, from which order the defendant appealed. The cause came on to be heard upon this appeal, at the Spring Term, 1845, of the Superior Court of Law for New Hanover County, when the plaintiff moved that the appeal should be dismissed, upon the ground that the order made by the county court was not one from which the defendant had a right to appeal. This motion was overruled, and the court proceeded to reverse the order of the county court and to refuse the application for leave to amend. From this judgment the plaintiff appealed to the Supreme Court.
In Smith v. Daniel,
The judgment of the Superior Court must, therefore, be reversed; and this Court, proceeding to give such judgment as the Superior Court ought to have given, doth affirm the order of the county court, and direct the same to be certified to the Superior Court, in order that a procedendo may there be issued to the county court (565) to allow of the amendment, according as the same was ordered in the county court.
PER CURIAM. Reversed.
Cited: Cody v. Quinn,