McCaskill v. . McKinnon

Clark, J.: Judgment was rendered at September Term, 188(5, in favor of the plaintiff against the defendant to recover the sum of $3,000 and interest and decreeing the foreclosure of the mortgage which had been executed to secure the debt. At June Term, 1887, the Commissioner appointed under the decree of foreclosure made his report which was confirmed and he was directed to credit the aforesaid judgment with the sum of $1,500 realized at the foreclosure sale and to make title to the purchaser. This was a motion under Section 440 of The Code for leave to issue execution, made before the Clerk of Richmond County on the 3 5th of February, 1897, and heard on appeal by the Judge at Chambers in Carthage, Moore County. The plaintiff contends that the judgment at September *195 Term, 1886, was interlocutory -only, and that there was no final judgment till June Term, 1897, and hence that he is not barred by the Statute of Limitations, Code, Section 152, (1). But the judgment at Fall Term, 1886, was final as to adjudging the recovery of money, and it is only for the recovery of the unpaid part of- the sum therein adjudged that execution is moved for. The judgment of September, 1886, was “retained for further directions” and interlocutory only as to the foreclosure, and upon the final judgment rendered as to that at June Term, 1897, no execution is now asked, or indeed could be asked. It was the conclusion of that matter and left nothing which could be done by an execution, if issued now. An action on the judgment would be barred (McDonald v. Dickson, 85 N. C., 248) but notwithstanding the lien of the judgment has ceased, a motion to issue execution thereon would not be barred if execution had been regularly issued once in every period of three years. Williams v. Mullis, 87 N. C., 159. But here the record shows that no execution had issued since July, 1887. Lytle v. Lytle, 94 N. C., 688. The payment entered upon the judgment at June Term, 1887, did not arrest the running of the Statute. McDonald v. Dickson, 87 N. C., 404; Hughes v. Boone, 114 N. C. 54. The appeal from the Clerk could be heard at Chambers in another County. Ledbetter v. Pinner, 120 N. C., 455. Affirmed.