Simpson v. . Sutton
Supreme Court of North Carolina
Motion, to set aside an execution, made before his Honor, Warren, J., at Fall Term, 1866, of the Superior Court of Hertford.
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Motion, to set aside an execution, made before his Honor, Warren, J., at Fall Term, 1866, of the Superior Court of Hertford. 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 February 14th, 1865, being returnable to Spring Term, 1865. A second execution, purporting to be an alias, was issued May 3d, 1866, tested of Spring Term, 1866, and ret turnable to Fall Term, 1866. On the 15th of May, 1866, the defendant executed a deed conveying all of his property (some of which had been…
1Opinion of the CourtReade, J.
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 Feb. 14th, 1865. The second. fi, fa. issued May 3d, 1866, more than a year and a day from the issuing of the first. And therefore the judgment was…
2Cited by2 opinions
- Boyden v. . OdenealSupreme Court of North Carolina · 1827
- McIntyre v. . GuthrieSupreme Court of North Carolina · 1870