74 S.E. 99 | N.C. | 1912
This was a motion to quash an execution and sale had thereunder, heard on appeal from Superior Court Clerk. On the hearing, the court being of opinion that the clerk had no jurisdiction to entertain or act on the motion, entered judgment dismissing the proceedings, and the applicant, John Williams, having duly excepted, appealed. After stating the case: It appears of record that on 13 February, 1909, one Jessie Williams having obtained a judgment in a justice's court against John Williams, the present appellant, for $35.12 and interest, caused the same to be duly docketed in the Superior Court of Lenoir County, and on 21 October, 1910, the same was assigned and transferred of record to Charles F. Dunn, cashier of Charles F. Dunn Sons. That on 8 February, 1911, execution was issued returnable to March term of Superior Court, same being within forty days from date of issue. That under said execution, on 14 March, 1911, certain (401) real estate of appellant, to wit, three lots in the city of Kinston, was sold by sheriff and the same bought by Charles F. Dunn, cashier, at the price of $125, and same was thereafter, on 13 April, 1911, conveyed by the sheriff to said Charles F. Dunn, etc. That on 2 September, pursuant to notice duly issued and served on Jessie Williams and C. F. Dunn, motion was made to quash said execution and sale, and there were affidavits submitted on part of appellant tending to show various irregularities in the proceedings by which appellant's land was sold, among others, that the execution had been issued within forty days of the term to which the same was returnable and contrary to section 624, Revisal; that the sale was made without proper advertisement, and that by the action of Charles F. Dunn, competitive bidding was in a large measure suppressed or prevented and such purchaser was enabled to bid off the entire property for $125, when either of the three lost was worth over $300, etc.; and appellant professed a willingness and desire to pay to Charles F. Dunn the amount of said judgments had against affiant and costs, etc.
There was affidavit on part of C. F. Dunn in denial of appellant's affidavits and containing averment that the sale was in all respects regular and fair.
On the hearing before the clerk, that officer entered judgment setting aside the execution and sale thereunder, declared same of no effect, and ordered that execution issue restoring the original owner to his property, *337 that an account of rents be taken, etc., and on appeal, as heretofore stated, the judge below reversed the ruling of the clerk and dismissed the proceedings on the ground that the clerk was without jurisdiction to entertain the motion.
The right to recall an execution by notice and motion in the court from which same was issued is usually the proper method of obtaining redress for irregularities affecting its validity. Aldridge v. Loftin,
At any time prior to sale the proceedings may be instituted before the clerk, and under certain circumstances it is probable that this course could be pursued at any time prior to the return day of the writ. Aldridgev. Loftin, supra.
After return made, however, and especially when there may be certain equitable claims for adjustment, it would seem the better practice that the motion should be made before the judge in term. Beckwith v. Mining Co.,supra.
Without final decision as to the power of the clerk after sale and return made, we all are of opinion that on the facts presented on this appeal the judge should have proceeded to hear and determine the question presented.
Revisal, 1905, sec. 614, it is provided: "Whenever any civil action or special proceeding begun before the clerk of any Superior Court shall be for any ground whatever sent to the Superior Court before the judge, the judge shall have jurisdiction; and it shall be his duty, upon the request of either party, to proceed to hear and determine all matters in controversy in such action, unless it shall appear to him that justice would be more cheaply and speedily administered by sending the action back to be proceeded in before the clerk, in which case he may do so." This well-considered statute, which has done so much to facilitate the efficient administration of justice, has always received the liberal interpretation that would best promote its beneficent purpose (Roseman v. Roseman,
There was error in dismissing the proceeding for want of jurisdiction, and this will be certified, that the rights involved shall be determined.
Error.
Cited: Baggett v. Jackson,