Opinion
(June Term, 1845.)
The county court has a right to permit a sheriff to amend his return on an execution to that court by striking out a return of a levy and sale and returning nulla bona. If, upon an appeal from this decision, the Superior Court undertakes, without its appearing on their records that they had examined into the merits of the case, to reverse this order, it must be presumed to be done upon the ground that the county court had no legal authority to make such an amendment; and, therefore, the Superior Court was in error, and their decision must be reversed.
APPEAL from NEW HANOVER, Spring Term, 1845; Pearson, J.
Strange for plaintiff.
(563) Badger for defendant.
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. 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, nunc pro 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, 7 N.C. 128, on a fieri facias against one person, the sheriff sold the slave of another and brought the money into court, and afterwards the owner of the slave recovered the value from the sheriff, and it was held that the sheriff might amend his return by striking out that which was made and inserting one of nulla bona. That is in point in the present case, to establish the power of the county court to allow the amendment. With the propriety of the exercise of that power in particular cases this court does not meddle, because, in general, it is a matter of discretion to allow or refuse the amendment, and, being a matter of discretion, the ground of allowing or refusing the amendment need not be set forth in the record. If, therefore, this were an appeal from a decision of the Supreme Court, upon a motion originally made in that court, we should certainly not enter into it. But that is not the state of this case. This motion was made in the county court and granted, and from the order as it stood, simply and without any statement of facts, an appeal was taken to the Superior Court, where the order was reversed. If it appeared that, in the Superior Court, evidence was gone into for the purpose of showing that the amendment ought or ought not to have been made, we should have felt bound by the opinion of his Honor, founded, at it would be, partly upon matter of fact. But nothing of that kind appears. After stating a refusal of the appellee's motion to dismiss the appeal, the record states that "the court proceeded to reverse the order of the county court and refuse the application to amend." This imports, not that the decision was on any merits made known by proof to the Superior Court, more (564) than they are to this Court; but merely that the order of the county court was reversed on its face, because it was erroneous in point of law, either because the county court could not, under any circumstances, make the order, or because the grounds of the order ought to have been stated in it. In that we think there was error; and viewing the case in that light, the error is one of law, and therefore cognizable by this Court. We can readily conceive that the amendment was very properly allowed. If, for example, the plaintiff in the execution or the sheriff was sued for the turpentine by some other person as owner, and after bona fide defense was compelled to pay for it, the defendant ought still to pay the debt, as it would thus appear that he never had paid it. But he could not be compelled to while the original return stood as a bar to any proceeding on the judgment. Therefore it ought to be put out of the way, so that a scire facias would lie on the judgment, especially as it could not prejudice the defendant if the turpentine really was his, inasmuch as the return would not conclude him, but he might still plead the seizure of his goods of value sufficient as a satisfaction. It is to be observed that there is no contest between the plaintiff and the sheriff, but only between the defendant and those persons. Now, we do not know that the facts were, as before supposed; but we presume they must have been of that kind, as we can imagine nothing else that could make the amendment desirable. It is sufficient, however, if there can be a case in which the county court ought to have allowed the motion; for, as far as we can see, the Superior Court reversed the decision of the county court without reference to any merits made to appear to the Superior Court, but for a supposed error apparent in the record. In other words, the power of the county court to allow the amendment must have been denied, contrary to Smith v. Daniel, 7 N.C. 128.
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, 28 N.C. 192; Slade v. Burton, ib., 208; Bagley v. Wood, 34 N.C. 91; Freeman v. Morris, 44 N.C. 288; Atkin v. Mooney, 61 N.C. 32; Williams v. Weaver, 101 N.C. 2.