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Atkin v. Mooney.
may collect in currency. Governor v. Carter, 3 Hawks, 328. A sheriff, in the absence of instructions to the contrary, would be justified in receiving what was passing currently in payment of debts of the character which he had to collect. Yet there must be some limit to this discretion of the sheriff; for, if he receive funds which are so much depreciated that it would amount to notice that the plaintiff would not receive them, he would be liable to the plaintiff in the execution.
How the facts were in this case we are not informed. We do not know whether Confederate money was current in the payment of such debts as the sheriff held for collection, or not. And these facts are necessary to determine the liability of the sheriff to the plaintiff in the execution. But they are not necessary to determine the present case, because the extent of the sheriff's liability is not the question before us. That question is: Had the execution been satisfied, so far as the petitioner is concerned? He had paid the sheriff in funds which the latter received without objection; and these funds have never been returned or offered to be returned, so far as we are informed. The petitioner has a receipt in full for the debt, and, outside of the declarations of the sheriff, it does not appear that he did not pay in good money.
We are therefore of opinion that the petition in this case ought not to have been dismissed, but should have been placed upon the trial-docket, so that the question as to the satisfaction of the execution by the petitioner may be properly raised and decided.
Sharpe v. Rintels and Company.
S. A. SHARPE v. J. RINTELS & COMPANY, and J. F. ALEXANDER and R. A. MCLAUGHLIN, as Admrs. of A. R. LAWRENCE, dec'd.
A writ in Debt had been returned to Fall Term, 1863, and counsel marked his name for the defendants, but entered no plea; at Fall Term, 1864, without the knowledge of the defendants, except M., (who was one of two administrators of the surety to the debt,) and without the knowledge of their counsel, the counsel for the plaintiff signed "Judgment by default final for," &c.; at the the next term, (Spring 1866,) the plaintiff's counsel agreed that the judgment might be stricken out as to all of the defendants excepting the administrators: Held, that there was no error in the refusal of the Judge below to strike out the judgment as to such administrators.
(The case of Davis v. Shaver, ante p. 18, cited and approved.)
DEBT, returnable to Fall Term, 1863, of Iredell Superior Court.
At the return term the same counsel was employed by each of the defendants, and he marked his name to the case, but entered no pleas. At Fall Term, 1864, the counsel of the plaintiff signed judgment upon the docket against all the defendants, without the knowledge of their counsel, or of any of the defendants except McLaughlin, who was the clerk of the court, and made no objection, supposing that his counsel would give it all proper attention. Execution was issued from Fall Term, 1864, and after that no term of the court was held until the Spring of 1866, when the defendants, Rintels & Company, moved to set the judgment aside, on the ground that it had been obtained and taken irregularly. With the consent of the plaintiff, this was done as to Rintels & Company. Thereupon the plaintiff entered a nolle prosequi as to them. The court, Mitchell, J., presiding, refused to set aside the judgment against the other defendants, who were administrators of one Lawrence, the surety upon the debt, and they being dissatisfied appealed to the Supreme Court.
The entry of judgment was upon the minute docket, as
Penny v. Smith.
follows: "Judgment by default final for $1,600 principal, $272 interest, and costs."
Clement, for the plaintiff.
Boyden and Bailey, for the defendants.
READE, J. This case falls under the principles laid down, and the authorities cited in Davis v. Shaver, ante, p. 18; and for the reasons there given the judgment must be affirmed.
THOMAS M. PENNY v. JOHN SMITH.
Even after final judgment has been entered, a court has power, at any time during the same term, to amend the proceedings in a suit; therefore, Where a petition had been dismissed, and the petitioner had prayed for and obtained an appeal from the order; Held, that the County Court had power during the same term, to allow the petition to be amended; also, that the terms, upon which such allowance was made, was a matter exclusively within its discretion.
(The case of Plunkett v. Penninger, 2 Jones, 367, cited and approved.)
PETITION FOR A CARTWAY, filed at December Term, 1862, of Davie County Court. At March Term, 1863, the petition was dismissed, and thereupon the petitioner prayed an appeal to the Superior Court. Afterwards, during the same term, the petitioner moved to amend his petition, and this was allowed by the court.
In the Superior Court, at Fall Term, 1863, the defendant moved to dismiss the petition, upon the ground that the County Court had no power to amend, after dismissing it
Penny v. Smith.
and granting an appeal. Bailey, J., having refused to dismiss, the defendant appealed to this court.
Clement, for the petitioner..
PEARSON, C. J. The Judge had a discretion to allow an appeal bond to be filed in the Superior Court, and with the exercise of that discretion this court has no right to interfere.
The motion to dismiss the appeal, upon the ground that the County Court had no power to amend the petition after dismissing it and granting an appeal to the Superior Court, was put on the ground that the court was functus officio in respect to the case, and had no further control over it. In this the counsel for the defendant is mistaken. The proceedings of the court are in fieri until the expiration of the term, and, until then, the record remains under the control of the court. It may strike out the judgment, and enter a different one; it may amend the pleadings, and do any other act necessary to effect the purposes of justice—and this as well after as before what purports to be a final judgment has been entered. In other words, the court has the whole term during which to consider of its action; and any entry made on a former day does not affect its power on a subsequent day. It is every day's practice in the Superior Courts to allow the writ to be amended, by entering a larger sum or in ejectment, to extend the time of the demiseand these amendments are usually applied for and allowed, after judgment has been entered, and an appeal taken. But it is a rule that the court will not allow an amendment which takes away the ground on which the party has appealed, except upon the payment of all costs; and then the appellant can withdraw the appeal. Such amendments are also made in this court, but we take care not to amend a
Burbank v. Williams.
party out of court; that is, take from under him the ground on which he appealed, except upon the payment of all costs. If the County Court had not allowed the amendment in this case, it would have been ordered in the Superior Court, or in this court; so that there is no room for complaint, except as to costs. Plunkett v. Penninger, 2 Jones, 367.
The County Court had full power to allow the amendment at the time that it was made. Whether the amendment should have been made without costs, or upon payment of costs, was a matter of discretion, with which the Superior Court had no right to interfere. There is error.
W. R. S. BURBANK v. L. L. WILLIAMS.
A question having been made in the Superior Court as to the constitutionality of an act which gave defendants further time to plead; Held, that, inasmuch as the statute had been repealed before judgment was pronounced in this court, (especially, as the appeal had already given the defendant all the delay that he asked,) the court would not entertain the question merely for the purpose of settling the incidental question of costs.
DEBT, upon a promissory note, returned to Rowan Superior Court, at Fall Term, 1864. At Spring Term, 1866, no pleas having been entered, the plaintiff moved for judgment according to the note. The defendant resisted this motion upon the ground that the stay law of 1866, (Acts of 1865-'6, c 16,) gave the defendant further time to plead. Mitchell, J., refused to give the judgment prayed for, and thereupon the plaintiff appealed to the Supreme Court.
Blackmer, for the plaintiff.
Boyden and Bailey, for the defendant.