Opinion
(June Term, 1834.)
A fi. fa. issued upon a dormant judgment is not void, and the sheriff is bound to obey it.
CASE against the defendant, the sheriff of Martin, for a false return to a fi fa. issued at the instance of the plaintiff against the goods of one Tunstal, and also for improperly applying the amount raised by a sale of the said goods to another execution, instead of to that of the plaintiff.
Devereux for the defendant.
Badger contra.
PLEA, not guilty.
On the trial at HALIFAX, on the last Fall circuit, a verdict was taken subject to the opinion of the Court upon the following facts. The plaintiff's judgment against Tunstal, was obtained in Nash Superior Court, at the term thereof, beginning on the third Monday of March, 1831. At the following September term an execution issued, directed to the defendant, which was held up by the plaintiff, and never delivered. From March, 1832, an alias issued, which came to the defendant, and on this writ the alleged misfeasance took place.
At November term, 1827, of BERTIE County Court, one Thompson obtained a judgment against Tunstal, a fi. fa. issued on this judgment returnable to February (498) term following, which was returned nulla bona. No other execution issued until February Term, 1832, when another fi. fa. came into the hands of the defendant, and was levied upon three slaves. This writ was issued without any sci. fa. to revive the judgment, in consequence of Tunstal's waiving such process. Upon the levy returned to this writ, a venditioni issued from May, 1832, upon which the negroes were sold, and the proceeds paid to Thompson. The plaintiff contended that he had a preferable right to satisfaction out of those slaves, and this action was brought to recover the sum for which they sold.
His Honor, Judge Martin, being of opinion that the plaintiff was entitled to recover, gave judgment accordingly, and the defendant appealed.
Upon the case stated we are unable to perceive any legal grounds for the judgment rendered against the defendant. Admit that Thompson's execution was irregular because sued out without a scire facias, and admit even that this irregularity was not cured by the waiver of Tunstal, the defendant in the execution, upon which points it is unenecessary [unnecessary] to express an opinion, yet assuredly it was not therefore void. Now an officer cannot only justify under an irregular or voidable process, but he is bound to execute it. Weaver v. Cryer, 12 N.C. 337. Thompson's execution therefore was an obligatory mandate on the sheriff to levy the debt of the goods and chattels of Tunstal. Upon what grounds could the sheriff give the preference claimed for the plaintiff's execution? We can see none unless it be that the latter purports to be an alias fi. fa. But it has been settled in Palmer v. Clarke, 13 N.C. 354, that an alias fi. fa. has no lien, as against another creditor anterior to its teste, when the original fi. fa. has not been delivered to the sheriff, but retained by the plaintiff in the execution.
We are of opinion that the judgment of the Superior Court must be reversed, and judgment rendered upon the case agreed, in favor of the defendant.
PER CURIAM. Judgment reversed.
Cited: Smith v. Spencer, 25 N.C. 266; S. v. Morgan, 29 N.C. 388; Brown v. Long, 36 N.C. 192; Murphey v. Wood, 47 N.C. 64; Boyd v. Murray, 62 N.C. 241; Williams v. Williams, 85 N.C. 386; Ripley v. Arledge, 94 N.C. 471.
(499)