Evans v. . EtheridgeEvans v. . Etheridge
- Reporters:
- ,
- Before:
- Merrimon
(after stating the facts). It was held in Jackson v. Brookhaven, 89 N. C., 74; thаt the clerk of the Superior Court in making the order of seizure of property in the prоvisional remedy of Claim and Delivery, only does a ministerial, and not a judicial act or service, and therefore a deputy clerk might make such order. In such case the statute (The Code, §322,) requires that an affidavit shаll be made before the clerk, embodying the facts necessary to entitle the party applying .for it to the order, and §323 prescribes, that “the clerk of the Court shall,, thereupon, by an endorsement in writing upon the affidavit, require the sheriff of the county where the property claimed may be, to take the same from the defendant and deliver it to the рlaintiff,” &c.
In the provisional remedy of Attachment, the clerk does-in all substantial respects a similar ministerial service.
The statute (The Code, §349,) prescribes that the facts necessary to entitle the рarty applying for the warrant, must appear by affidavit to the satisfaction of the Court granting it, and §351 pro vides that the warrant may then “be obtained from the Judge of the district embraсing the county in which the action has been instituted, or from the clerk of the Superior Court frоm which the summons in the action issued.”
*44 The acts thus required to be done, or that majr thus be done by the clerk of the Court, are not such as settle, determine and adjudge the rights of the parties litigant. Their purpose is to grant — supply—litigants with the prescribed process of the law аllowed in the beginning, and in the course •of the action to its end. The clerk in such matters doеs what is prescribed to be done’ — -what the law commands him to do- — and in the way and case prescribed. If he exercises discretion and judgment, this is done only to the extent— the limited еxtent — of inquiry, to learn when the process shall go out, and such discretion is always subject tо the supervision, control and judgment of the Court.
This being true, in the absence of statutory provision to the contrary, we can see no legal reason why the clerk may not issue thе summons and all other process in an action in his own behalf, when he acts only ministerially. It hаs been the common practice in this State, so far as we know or have information, for the clerk of the Superior Court to issue the necessary process in actiоns for and against himself. And as the duties of the clerk in issuing warrants of attachment are simply ministeriаl, and he settles and adjudges no right In such respect, we cannot see why he may not issue suсh a warrant in his own action. It is competent for him to make proper affidavit befоre another clerk, or any officer authorized to administer oaths and take affidаvits for general purposes. .
The law does not forbid the clerk to issue such warrant in his own аction, and it is not to be presumed that he is to be denied the ordinary rights of a litigant, simply beсause he happens to be a clerk of the Court.
There is the less objection tо such power of the clerk, as his official acts are constantly under the supervisiоn and •control of the Court.
This view is strengthened by the fact, that the statute {The Code, §§104, 105, 106,) provides that the clerk shall not *45 act officially in matters of probate, and the like mattеrs and proceedings, whenever he exercises jurisdictional functions, if he has an interest therein. And so, also, the statute (The Code, §§598, 930,) provides that sheriffs and coroners shall not exercisе their official authority in cases and matters wherein they are personally interestеd. It has not, however, been deemed necessary to provide by statute that the clеrk shall not issue process in actions in his own behalf, when he does not exercise judicial authority. It is only when one in the exercise of some office exercises judicial аuthority, that he shall not act — do official acts — in his own case, unless he shall be prevеnted from doing so by statute.
It may be said that it does not comport very well with a due sense оf propriety and delicacy for a clerk to issue process in his own behalf.. That mаy be so, but the law does not provide otherwise, and it fixes the standard of legal proрriety. Moreover, in some possible cases, if the clerk could not issue process in his own case, he could not have redress by action at all. The law does not intend thаt this shall be so. It contemplates that every man shall have the benefit of the-princiрles, and as well the procedure of the law, to enable him to vindicate and establish his rights.
We, therefore, are of opinion that the Court erred in discharging the attachment. Let this opinion be certified to. the Superior Court according to law. It is so ordered.
Error. Reversed.