Cottingham v. . McKay

Smith, C. J., after stating the case. There can be no question of the reserved power in the clerk to revoke and supersede a warrant which he may have improvidently issued under the act of 1867, as amended by the act of 1873, Bat. Rev., ch. 65, §§ 19, 20. The remedy given is however summary and prompt, and as a special proceeding has for its object the appropriation of the encumbered crops to the satisfaction of the debt created in making them. When this appropriation has been made, the proceeding is exhausted and comes to an end. If the debt is disputed, and notice 'thereof given to the officer accompanied with the defendant’s affidavit denying the indebtedness claimed, he is required to hold the proceeds of sale until the issue of the controverted indebtedness can be tried in the superior court. If the warrant is revoked, the goods or the proceeds of sale must be returned, as must be the excess when they are more than sufficient to meet the plaintiff’s demand and costs, as stated by himself, or as reduced by the verdict of the jury. The statute in direct terms makes no other provision for the intervention *244 of the debtor to stop the progress of the proceeding. Gay v. Nash, 84 N. C., 333. We do not wish therefore to b@ understood as passing upon the regularity of the action in the superior court, if it was properly removed by appeal from the decision of the clerk, since it is not necessary to do so in determining the appeal to this court. The judge was under no legal obligation to the plaintiffs to order the continued retention of the fund to await the result of the newly instituted action, and the restoration of it to the defendants was a necessary and obvious consequence of the refusal of the plaintiffs’ application. Their property had been taken from their possession by process wrongfully issued, and its return must follow the setting aside that process, when it is ascertained and declared to' have been issued without authority of law. Perry v. Tupper, 70 N. C., 538; same case, 71 N. C., 385 and 387. There is no error and the judgment must be affirmed. No error. Affirmed.