Averett v. Thompson

CHILTON, J. No question was raised in the court below, as to the admissibility of the record, showing a judgment and execution in favor of Daniel Thompson, against the defendant in error, and consequently, no question as to its authentication can be raised here. The only question we need consider, is, whether the record furnished sufficient warrant to the plaintiff in error for making the sale of the slaves. He was the sheriff of Onslow county, in the state of North Garolina, and the record shows that a writ of fieri facias, was placed in his hands, which was regular upon its face, issued from the superior court of Jones county, directed to him, and commanded him as sheriff, “ that of the goods and chattels, lands and tenements, of William H. Thompson, administrator of James Golvett, he cause to be made the sum of $247 66 which said Daniel Thompson, lately, in the said superior court of law for the county of Jones, recovered against him, for cost, $*c.” The record merely shows a writ between the parties; that defendant pleaded the general issue and forgery; that a jury found the issues in favor of the defendant, and then recites, “judgment against the plaintiff, for cost.” It does not appear from the exemplification that any declaration was ever filed. The counsel insists, that the execution was void, as there was no judgment on which it could issue. It is true, the judgment entry is not formal, but it is not necessary for the protection of the sheriff, that he should show a judgment. If the court has jurisdiction of the subject matter, and the execution is regular upon its face, the sheriff has no right to en-quire into the irregularity of the proceedings of the court. We must intend that the common law is of force, in the state of North Carolina, where the sale was made, and by that law the rule, as we have above stated it, is well settled. Sheppard et al. v. Nabers, 6 Ala. Rep. 635; 5 Wend. 170; 16 ib. 514; 3 Greenl. Rep. 40; 3 Dev. 468. So in Stephenson v. McLean, 5 Humph. Rep. 332, it was held, that although á sheriff was not bound to execute void process, he is bound to execute process merely irregular and voidable. If he fail to do so, he is liable to the plaintiff, and if he execute it, he is protected. In Kleissendorff v. Fore, 3 B. Monroe, it was held, that [682] the sheriff was not bound to look to the judgment, but that the execution was his warrant. The cases towhich we are referred, by the counsel for the defendant in irror, do not militate against this view, when closely examined. The case from South Carolina, of Evans v. Hinds, where the entry bears some resemblance to this, was a controversy between two purchasers of land, at the sheriff’s sale, and it became necessary to show a judgment, in order to make out the title. The case of Reade v. Markle, 3 Johns. Rep. 516, was a controversy between the parties, to irregular process, after it had been declared void, which distinguishes it very clearly from this case. There can, I apprehend, be no question, but that the sheriff in that case, who executed the process and sold the property, for the conversion of which the action was brought, would have been protected. Upon the other point, as to whether the property of the defendant in error could properly be levied upon, we think it too clear to admit of argument. The mandate of the writ is to levy the amount of his goods ands chattels, land and tenements, describing the defendant in the execution as administrator of the estate of Colvett. That this is but a description of the person, see Peters v. Heydenfeldt, 3 Ala. Rep. 205; and cases cited on the brief of the counsel for the plaintiff in error. The ruling of the county court, being opposed to the view here expressed, the judgment is reversed and cause remanded.