Opinion
(January Term, 1867.)
1. The "year and a day" mentioned in the Rev. Code, ch. 31, sec. 109, runs from the issuing, and not from the return of the execution; Therefore,
2. Where the former execution had been issued 14 February, 1855, a second purporting to be an alias, issued 3 May, 1866, was set aside as irregular.
( Boyden v. Odeneal, 1 Dev., 171 cited and approved.)
MOTION to set aside an execution, made before his Honor, Warren, J., at Fall Term, 1866, of the Superior Court of HERTFORD.
Smith for plaintiff.
Yeates for defendant.
The facts were as follows: The plaintiff, at Fall Term, 1864, had obtained a judgment by default against the defendant. A fi. fa., tested of that term, had issued 14 February, 1865, being returnable to Spring Term, 1865. A second execution, purporting to be an (113) alias, was issued 3 May, 1866, tested of Spring Term, 1866, and returnable to Fall Term, 1866. On 15 May, 1866, the defendant executed a deed conveying all of his property (some of which had been levied upon under the execution) in trust to pay debts, excluding the judgment above.
Upon this state of facts a motion was made by the defendant and the trustee to set aside the second execution, as having issued under a dormant judgment. A counter motion was at the same time submitted by the plaintiff to amend the former execution by making it returnable to Fall Term, 1865.
His Honor refused the latter motion and ordered the second execution to be set aside.
Two questions are presented in this case:
1. The power of the court to allow the amendment asked by the plaintiff.
2. The effect of the amendment if made.
It is unnecessary to decide the first question, because the decision of the second disposes of the case.
The amendment, if made, would not avail the plaintiff. The time of issuing process is the time when it leaves the office. Boyden v. Odeneal, 1 Dev., 171. The time of issuing the first fi fa. was 14 February, 1865. The second fi fa. issued 3 May, 1866, more than a year and a day from the issuing of the first; and, therefore, the judgment was dormant.
It was insisted in the argument that if the first fi. fa. were amended so as to make it returnable to Fall instead of Spring Term, 1865, (114) the issuing of the second would be within a year and a day from the return of the first, and that "the year and a day" was to be counted from the return of the one to the issuing of the other. But that is not correct, for the statute (Rev. Code, ch. 31, sec. 109), admits of no doubt that "the year and a day" is to be counted, not from the return of one to the issuing of the other, but from the issuing of one to the issuing of the other. There is no error.
PER CURIAM. Judgment affirmed.
Cited: Jacobs v. Burgwyn, 63 N.C. 195; Foard v. Alexander, 64 N.C. 70.