Opinion
(August Term, 1847.)
1. Where a judgment was rendered in October, 1838, by a magistrate, upon a return of the constable on the warrant "Executed," but not having the name of the constable signed to the return: Held, that this judgment was not void for the want of the signature of the constable to the return on the warrant.
2. And Held further, that the defendant in that judgment, against whom a magistrate, at a subsequent time, had rendered judgment upon the former judgment, could not be relieved from the last judgment by writ of recordari without first having the prior judgment reversed.
APPEAL from BURKE Spring Term, 1847; Dick, J.
The defendant Butler issued a warrant against Hugh McElrath and several others, in a plea of debt for $100, due by note; and the constable returned the warrant "Executed," but did not sign his name thereto, and afterwards he died. On 15 October, 1838, R. C. Pearson, a justice of the peace, entered judgment against the said Hugh for $100 principal, interest, and costs. On 4 September, 1843, Butler issued another warrant against Hugh McElrath in a plea of debt due by former judgment in the sum of $100. This warrant was executed and a judgment rendered on it by Thomas Walton, a justice of the peace. Hugh McElrath obtained a writ of recordari to issue to Walton to record the proceedings had before him, and sued them into the Superior Court of Burke County, which was done accordingly. The ground of the motion for the recordari was that the first warrant on which Pearson gave a judgment against him had never been executed on him, nor had he any notice of the same. The judge, on the hearing of the Superior Court, ordered that the judgments heretofore given by R. C. Pearson and Thomas Walton, Esquires, be vacated. From this order the defendant Butler appealed to the Supreme Court. (399)
No counsel for plaintiff.
Avery for defendant.
It seems to us that the judge erred in reversing the first judgment given against Hugh McElrath by R. C. Pearson, for there was no petition nor prayer by Hugh McElrath that it should be vacated. It was not before the Court. Secondly. Hugh McElrath insisted that the judgment rendered against him by Walton was erroneous because he, Walton, had rendered it on the former judgment, which Hugh alleged was void as having been rendered against him without notice. The judge, we think, erred in reversing this judgment. The warrant on which the first judgment was rendered against Hugh McElrath was returned executed on him by the constable, but the constable neglected to sign his name to his return. We do not think that the judgment rendered by Pearson was void. If it was erroneous until it was reversed for error, it was good evidence for Walton to render the second judgment on. We think that the judgment of the Superior Court must be reversed and judgment on the recordari entered for the original plaintiff Butler.
PER CURIAM. Judgment accordingly.
Cited: Spillman v. Williams, 91 N.C. 489; Stafford v. Gallops, 123 N.C. 23.
(400)