Millikan v. . Fox

Ashe, J. We refrain from expressing any opinion upon the question presented by the record, because it is a case of such an anomalous character that we cannot entertain it as before us on this appeal. In no view of the case can this court take cognizance thereof; not as an interpleader, for the right of interpleader, given by section 65 of the Code of Civil Procedure, applies only to an action properly constituted in court, and not to rules or motions as to funds in the hands of a sheriff (Bates v. Lilly, 65 N. C., 232); nor as a controversy submitted without action, because this submission is not verified by an affidavit, as is required by section 315 of the Code; and besides, ‘that proceeding only lies when there is a question in difference between the parties, which might be the subject of a civil action. It cannot be entertained as an application on the part of the sheriff for advice as to application of money in his hands raised by sale under execution in favor of different creditors, *110 because there is no money in his hands.' This advisory jurisdiction is not authorized by the common law, nor by any statute, but is a practice which has grown into use under the tolerance of the court, and has only'been exercised when a sheriff has rained money under several executions, issued at the instance of different plaintiffs, and is in doubt how to distribute. In every instance when this court has given such advice on appeals, it has been in cases where the money has been collected and is in the hands of the sheriff. Washington v. Saunders, 2 Dev., 343; Palmer v. Clark, Ib., 354; Ramsour v. Young, 4 Ired., 133; Whitaker v. Petway, Ib., 182; Williams v. Green, 80 N. C., 76; Motz v. Stowe, 83 N. C., 434; Whitehead v. Latham, Ib., 232. The proceeding must be dismissed. Let this be certified to the superior court of Randolph county. Per Curiam. Appeal dismissed.