{
  "id": 8552475,
  "name": "SPALDING DIVISION OF QUESTOR CORPORATION, DALLAS ELECTRICAL CONTRACTORS, INC., DALLAS PLUMBING COMPANY, W. R. MATHIS and WITTEN SUPPLY COMPANY v. HORACE M. DuBOSE III, Trustee, and ROBERT J. BERNHARDT, Trustee, as their interests may appear",
  "name_abbreviation": "Spalding Division of Questor Corp. v. DuBose",
  "decision_date": "1980-05-06",
  "docket_number": "No. 7927SC1144",
  "first_page": "612",
  "last_page": "614",
  "citations": [
    {
      "type": "official",
      "cite": "46 N.C. App. 612"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "196 S.E. 340",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "year": 1938,
      "opinion_index": 0
    },
    {
      "cite": "213 N.C. 369",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8628167
      ],
      "year": 1938,
      "opinion_index": 0,
      "case_paths": [
        "/nc/213/0369-01"
      ]
    },
    {
      "cite": "235 S.E. 2d 166",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1977,
      "opinion_index": 0
    },
    {
      "cite": "292 N.C. 692",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8572659
      ],
      "year": 1977,
      "opinion_index": 0,
      "case_paths": [
        "/nc/292/0692-01"
      ]
    },
    {
      "cite": "34 S.E. 446",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "year": 1899,
      "opinion_index": 0
    },
    {
      "cite": "125 N.C. 383",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11273985
      ],
      "year": 1899,
      "opinion_index": 0,
      "case_paths": [
        "/nc/125/0383-01"
      ]
    },
    {
      "cite": "79 S.E. 512",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "year": 1913,
      "opinion_index": 0
    },
    {
      "cite": "163 N.C. 206",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11271350
      ],
      "year": 1913,
      "opinion_index": 0,
      "case_paths": [
        "/nc/163/0206-01"
      ]
    },
    {
      "cite": "153 S.E. 2d 19",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1967,
      "opinion_index": 0
    },
    {
      "cite": "269 N.C. 617",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8565216
      ],
      "year": 1967,
      "opinion_index": 0,
      "case_paths": [
        "/nc/269/0617-01"
      ]
    },
    {
      "cite": "116 S.E. 2d 490",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1960,
      "opinion_index": 0
    },
    {
      "cite": "253 N.C. 230",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8623974
      ],
      "year": 1960,
      "opinion_index": 0,
      "case_paths": [
        "/nc/253/0230-01"
      ]
    },
    {
      "cite": "25 S.E. 2d 460",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1943,
      "opinion_index": 0
    },
    {
      "cite": "223 N.C. 153",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8601641
      ],
      "year": 1943,
      "opinion_index": 0,
      "case_paths": [
        "/nc/223/0153-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 341,
    "char_count": 6013,
    "ocr_confidence": 0.785,
    "pagerank": {
      "raw": 4.860990136604402e-07,
      "percentile": 0.9327997501012607
    },
    "sha256": "12e0e88738ea60db2e39a44b183069720e84e4e5076a0a1cc3dfecd02c02f15d",
    "simhash": "1:9a79b574303916fb",
    "word_count": 984
  },
  "last_updated": "2023-07-14T21:32:37.131990+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Parker and Hill concur."
    ],
    "parties": [
      "SPALDING DIVISION OF QUESTOR CORPORATION, DALLAS ELECTRICAL CONTRACTORS, INC., DALLAS PLUMBING COMPANY, W. R. MATHIS and WITTEN SUPPLY COMPANY v. HORACE M. DuBOSE III, Trustee, and ROBERT J. BERNHARDT, Trustee, as their interests may appear"
    ],
    "opinions": [
      {
        "text": "MARTIN (Harry C.), Judge.\nDefendants contend the superior court did not have jurisdiction of the cause of action alleged by plaintiffs as it is a collateral attack upon the judgment of confirmation by the clerk of superior court. If the court had jurisdiction, we are faced with the question whether the clerk had authority under Article 29B of Chapter 1 of the General Statutes of North Carolina to permit defendants to use their judgments as cash in the payment of their bid to the sheriff on the execution sale.\nThe clerk has original jurisdiction to enter orders confirming execution sales. \u201cNo sale of real property may be consummated until the sale is confirmed by the clerk of the superior court.\u201d N.C. Gen. Stat. 1-339.67. Appeals from the clerk of superior court to the judge are controlled by N.C.G.S. 1-272, containing the following: \u201cAn appeal must be taken within ten days after the entry of the order or judgment of the clerk . . ..\u201d The appeal must be taken within ten days after the clerk\u2019s judgment to entitle the judge of the superior court to review the ruling. Muse v. Edwards, 223 N.C. 153, 25 S.E. 2d 460 (1943). There must be an appeal from the clerk\u2019s judgment to give the superior court jurisdiction. See Ramsey v. R. R., 253 N.C. 230, 116 S.E. 2d 490 (1960). The superior court does not acquire jurisdiction where there is no appeal from the clerk\u2019s judgment. Gravel Co. v. Taylor, 269 N.C. 617, 153 S.E. 2d 19 (1967).\nPlaintiffs did not appeal from the judgment of confirmation by the clerk. Defendants contend plaintiffs\u2019 action is a collateral attack upon the clerk\u2019s order and that it cannot be maintained as their remedy is by appeal from the order of the clerk. Plaintiffs argue they are not attacking the clerk\u2019s order but are seeking to set aside the sheriff\u2019s deed. Plaintiffs ask in their complaint that the execution sale be declared null and void because defendants did not pay their bid in cash. They also ask that the sheriff\u2019s deed be declared void for the same reason. The court in its summary judgment declared that the order of the clerk is void. We hold plaintiffs are collaterally attacking the clerk\u2019s order.\nPlaintiffs cannot avoid the execution sale by collateral attack; they must proceed directly, either by motion in the cause or appeal. Williams v. Dunn, 163 N.C. 206, 79 S.E. 512 (1913); Henderson v. Moore, 125 N.C. 383, 34 S.E. 446 (1899). The proper remedy to set aside an execution or a sale thereunder is by motion in the cause and not by independent action. Henderson County v. Osteen, 292 N.C. 692, 235 S.E. 2d 166 (1977); Finance Co. v. Trust Co., 213 N.C. 369, 196 S.E. 340 (1938). Where the proceeding complained of is before the clerk, the additional remedy of appeal to the superior court judge is available. N.C. Gen. Stat. 1-272.\nWe hold the superior court erred in denying defendants\u2019 motion to dismiss and in entering summary judgment for plaintiffs. Plaintiffs have mistaken their remedy. With this ruling, we do not reach the other issue raised on the appeal.\nThe judgment of the superior court is reversed and the cause is remanded to the Superior Court of Gaston County for entry of a judgment allowing defendants\u2019 motion to dismiss plaintiffs\u2019 action.\nJudges Parker and Hill concur.",
        "type": "majority",
        "author": "MARTIN (Harry C.), Judge."
      }
    ],
    "attorneys": [
      "Charles D. Gray III for plaintiff appellees Dallas Electrical Contractors, Inc. and Dallas Plumbing Company.",
      "Stewart and Lowe, by Michael David Bland, for plaintiff ap-pellee W. R. Mathis.",
      "Horace M. DuBose III and Lindsey, Schrimsher, Erwin, Bernhardt & Hewitt, by Robert J. Bernhardt, for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "SPALDING DIVISION OF QUESTOR CORPORATION, DALLAS ELECTRICAL CONTRACTORS, INC., DALLAS PLUMBING COMPANY, W. R. MATHIS and WITTEN SUPPLY COMPANY v. HORACE M. DuBOSE III, Trustee, and ROBERT J. BERNHARDT, Trustee, as their interests may appear\nNo. 7927SC1144\n(Filed 6 May 1980)\nExecution \u00a7 15\u2014 collateral attack on execution sale\nPlaintiffs\u2019 action in superior court to declare an execution sale and sheriffs deed void because defendants did not pay their bid in cash but merely cancelled judgments against the property owner constituted an impermissible collateral attack upon the order of confirmation of the execution sale by the clerk of court, plaintiffs\u2019 remedy being to proceed directly either by motion in the cause or appeal.\nAPPEAL by defendants from Burroughs, Judge. Judgment signed 12 October 1979 in Superior Court, GASTON County. Heard in the Court of Appeals 18 March 1980.\nThis is an action by plaintiffs to declare null and void an execution sale and to declare void a deed issued pursuant to the execution sale. Plaintiffs allege the execution sale is defective because defendants did not pay cash for the property, violating N.C.G.S. 1-339.47.\nDefendants moved to dismiss pursuant to Rule 12, North Carolina Rules of Civil Procedure, and plaintiffs moved for summary judgment. The motions were heard upon affidavits and stipulations and the trial court denied defendants\u2019 motion to dismiss and entered summary judgment for plaintiffs. Defendants appeal.\nDefendants secured judgments against A. C. Burgess, Jr. and issued executions upon Burgess\u2019s property. Burgess owned a house and lot, and the sheriff posted notice of sale of this property under defendants\u2019 executions. Meanwhile, plaintiffs, who had claims against Burgess for labor and materials used in construction of the house, filed liens and obtained judgments on them against Burgess. Plaintiffs\u2019 judgments are junior in time to defendants\u2019 judgments.\nAt the execution sale upon defendants\u2019 judgments, defendants bid $32,556.88, which was paid by cancelling defendants\u2019 judgments, rather than by payment in cash. Plaintiffs did not bid at the sale and no upset bid was filed within the ten-day period. Thereafter, the Clerk of Superior Court of Gaston County confirmed the sale by order of confirmation. No one appealed from the clerk\u2019s order of confirmation. Upon order of the clerk, the sheriff executed and delivered a deed conveying the property to defendants.\nCharles D. Gray III for plaintiff appellees Dallas Electrical Contractors, Inc. and Dallas Plumbing Company.\nStewart and Lowe, by Michael David Bland, for plaintiff ap-pellee W. R. Mathis.\nHorace M. DuBose III and Lindsey, Schrimsher, Erwin, Bernhardt & Hewitt, by Robert J. Bernhardt, for defendant appellants."
  },
  "file_name": "0612-01",
  "first_page_order": 640,
  "last_page_order": 642
}