13 N.C. 343 | N.C. | 1830
FROM JOHNSTON.
His Honor, after stating the case as above, proceeded: If the sheriff ought to distribute money between two plaintiffs, or ought to apply it to the one writ, and misapplies it, the person injured has his redress by action. The Court is under no obligation to superintend, by this summary method, his administration. They never refuse to advise an officer who is in difficulty and asks their advice upon facts stated by himself. And where the right of a party is clear as against an officer the Court will proceed by rule and attachment against its officer, so as to prevent the defeat or delay of justice. But where a sheriff does not apply to the Court, but of his own head does actually apply to one execution the money which of right belonged to another, the Court will not disturb the creditor who receives the money by laying him under rule. The Court can assume no such jurisdiction; for there is no distinction between such a controversy and any other that might arise in pais. The only remedy is against the sheriff, and not against the party.Sanford v. Roosa, 12 Johns, 162; Yarborough v. Bank,
But they have not. The sheriff acted in entire accordance with his duty. The plaintiffs are not entitled to anything; for their proceedings are entirely irregular and void. Washington Thompson's attachment was returnable before a justice of the peace of the County Court, without a return day mentioned in it. It is original process without any certain day, place, or Court, to which it is to be returned. In Parsons, v. Lloyd, 3 Wils., 341, it was held that a writ of capias ad respondendum, tested in Trinity term, and returnable in Hilary term, omitting the intervening Michaelmas term, was void; and the Court set it aside for irregularity, and the defendant, who had been arrested under it, maintained trespass vi etarmis for the imprisonment against the plaintiff in it. Surely this attachment is much more vicious. It *220 is to be recollected that none of the defects of the process are cured by the defendant's appearance. It is an absolute nullity, and afforded no justification to anybody concerned in it.
But there is another objection applicable to this attachment, in common with the other, which also vitiates it. They were directed to a constable, and executed by him. The sheriff is the proper officer to execute all writs returnable to Court, unless another be appointed by special order. He is the person entrusted by the law with authority to arrest persons, let to bail, seize property and replevy it. To him the writ of vend. expo. issued to sell the estates levied on. How is he to get at them in the hands of another person? He cannot return to that writ that the property is not to be found, because it is supposed to be in his hands. But when the first seizure is made by another, he cannot have it, but that other. By the lawful seizure the (347) property in chattels is vested in the officer. How is it to be divested out of the first and vested in the second? It is said that an attachment is a proceeding in rem, and that the property is in the custody of the Court, and they may order any one to sell. That is a fallacy, I think. The property is in the custody of the of the law and not of the Court. It is vested in the officer of the law, and he, and not the Court, is to bring trover for it. The execution upon proceedings such as these must therefore be inefficient, which proves their irregularity and invalidity. I do not say that every slip in pleading or defect of form will ever abate an attachment, much less render the judgment on it void. The appearance of the defendant will cure many defects. But due service of the attachment is indispensable; for by that only is the defendant brought into Court. It has been argued that it is immaterial how or by whom the process is executed; for the advertisement gives the notice to the defendant, and that is the real service. To that I answer, first, that advertisement is only required where the debtor is out of the State; secondly, that the law requires both a seizure of property and advertisement. If not, why not advertise at once as the leading process? Every man is expected to look after his property, and therefore if it be attached, that he will appear to claim and get it again. That is the principal ingredient in the service of this process. If the defendant be a non resident, the statute super adds notice in a newspaper, that he may have certain and speedy information at whose suit his estate is taken, and where and when he may release it. If either the notice be omitted, or the seizure be void, the proceedings are irregular, and not merely erroneous; and the Court will set them aside at any stage of the business or at any time after judgment. The defect is in the service of the process which causes the defendant not to be in Court. It is in the nature of things that he should not be bound by proceedings to *221 which he is not a party. If a writ is served on John by the name of James, it is not cured by declaring against the party by his (348) true name John; and the Court will set the whole aside, "because it is the same thing as no service." Doe v. Butcher, 3 Term, 611;Greenslade v. Rotheroe, 2 New Rep., 132. A defendant never pleads that the writ is not served; he is not put to that. If the party had appeared, then it would be different. This answers the remark, that if the Court accepts the return and acts, on it, the judgment is good until reversed. The Court looks into no such things, until they are brought regularly to its notice. The plaintiff must proceed regularly at his peril to get the defendant before the Court; when there, each party takes care of himself, and if the defendant appears to the process, he accepts it, but not the Court.
But if it were otherwise, and the judgment must stand until set aside, it cannot operate by relation to the illegal seizure, so as to affect third persons. In any event, therefore, the plaintiffs have no claim on the sheriff. But I have a very strong opinion that every step taken by the plaintiffs was wrong, and their judgments absolutely void, because there was no cause against Yeargain in Court. The judgment, therefore, of the Superior Court must be reversed, and those of the County Court affirmed, with costs in all the Courts.
PER CURIAM. Reversed.
Cited: Sanderson v. Rogers,
(349)
