Bates v. . Hinsdale

*425 Pearson, C. J. Tbe question in regard to tbe application oí the proceeds of the sale of the personal property, having been disposed of, as was stated at the bar, the case is now confined to the question in regard to the application of the proceeds of the sale of the house and lot. • His Plonor ruled, that the fund be applied rateably to all of the executions. ¥e regret not to be able to concur in this conclusion • for, “ equality is equity.” The parties all used diligence, and the difference is simply in respect to time. But these j ndgments and the proceedings had thereon, being rendered and done in 1870, must be governed by the C. C. P. alone; and according to it, time in docketing judgments, is made material, and the miller’s rule is adopted; “ first come, first served.” Grant, that the day during which a Justice of the Peace renders judgments, is his Term, and has the same legal incidents, as the Term of a Court, so that all of the judgments, to use the language of his Honor, are “ eotemporaneous,” we can see no ■ground on which this principle can be applied to the action of the clerk in docketing judgments, in the face of the provision of C. C. P. see. 503: “ The time of the receipt of the transcript by the clerk, shall be noted thereon, and entered m the docket; and from that time, the judgment shall be a judgment •of the Superior Court in all respects.” Time is sometimes used as synonymous with day, as when one asks, “ at what time in April, was the act done ?” Eeply, “ on the 4th day” — here time and day are treated as the same in meaning. But if asked, “ at what time of the day, was the act done ”? obviously the meaning of the two words would not be the same. Time in the section under consideration, is material; as it is in regard to the registration of deeds of trust; when the most the Court could do by construction, was to treat deeds as being registered the moment they are handed to the officer, as it is in regard to the levy of executions on personal property. This matter was fully argued and considered by us in John *426 son v. Sedberry, at last Term, 65 N. C. 1. The Court was not able then, and is not able now, to see how the mischief could be remedied, by construction merely, and felt obliged to have recourse to the power conferred by section 394, of prescribing rules of practice and procedure; and did at that Term, prescribe a rule; but that rule can have no application to the present case, for all of these proceedings were had before the adoption of the rule, and must stand solely upon the C. C. P., as it is written. There is error. The fund must be applied to the several executions, giving priority, according to the times in the day at which the transcripts were received by the clerk. Judgment of the Superior Court reversed, and judgment in conformity to this opinion. Per Curiam. Judgment reveresd.