43 S.E. 844 | N.C. | 1903
This action was brought to recover damages against the defendant for an alleged assault and battery with a deadly weapon — a pistol or metallic knuckles. The details of the battery are set forth in the complaint. There was a verdict for the plaintiff, and a judgment thereon was duly entered. An execution in the ordinary form was issued against the property of the defendant, the homestead exemption laid off by the sheriff, and no excess found liable to execution. Upon the return of the execution unsatisfied, the plaintiff applied to the clerk for an execution against the person of the defendant, under section 447 of The Code. The clerk refused the motion upon the grounds, first, that judgment was taken and docketed before any demand for an order of arrest; second, that the complaint made no demand for an order of arrest; third, the plaintiff accepted the judgment without an order of arrest; and, fourth, that no affidavit accompanied the motion for the order of arrest. His Honor reversed the action of the clerk who had refused to grant the motion.
Peebles v. Foote,
The judge who made the order for the execution was the judge residing in the district, but was not the judge who was at that time holding the courts of the district, and, for that reason, the defendant contends that the order was void, the judge not having jurisdiction. The question for decision before the clerk was a mere matter of law, and the appeal was properly sent up to the judge residing in the district. The Code, secs. 254, 255.
No error.
Cited: Turlington v. Aman,
(282)