{ "id": 1955293, "name": "W. D. ROSS et al. v. HARRISON ALEXANDER", "name_abbreviation": "Ross v. Alexander", "decision_date": "1871-06", "docket_number": "", "first_page": "576", "last_page": "579", "citations": [ { "type": "official", "cite": "65 N.C. 576" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "63 N. C. 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276556 ], "opinion_index": -1, "case_paths": [ "/nc/63/0107-01" ] }, { "cite": "63 N. C. 307", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277209 ], "opinion_index": -1, "case_paths": [ "/nc/63/0307-01" ] }, { "cite": "63 N. C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278896 ], "opinion_index": -1, "case_paths": [ "/nc/63/0653-01" ] }, { "cite": "65 N. C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955397 ], "opinion_index": -1, "case_paths": [ "/nc/65/0001-01" ] }, { "cite": "65 N. C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955397 ], "opinion_index": 0, "case_paths": [ "/nc/65/0001-01" ] } ], "analysis": { "cardinality": 351, "char_count": 5699, "ocr_confidence": 0.393, "pagerank": { "raw": 9.505882454708161e-08, "percentile": 0.5207371163338094 }, "sha256": "1fb707645434bf34cbc8e45b1b06ecfbe96c69128d9deacef241163b8ebf9bfa", "simhash": "1:bb4fa41048191158", "word_count": 1010 }, "last_updated": "2023-07-14T18:41:56.423501+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. D. ROSS et al. v. HARRISON ALEXANDER." ], "opinions": [ { "text": "Pearson, C. J.\nA judgment gives a lien upon all of the real property of the defendant in the County, from the time it is docketed. So the judgment owned by Alexander was properly put last in the order of payment, unless there be some ground for making an exception.\nOn the argument, Mr. Scott relied upon the provision in regard to existing judgments. \u201c No lien acquired before the ratification aforesaid, shall be lost by any change of process.3\u2019 O. C. P. sec. 403. In this instance, there was a change of process, from an alias and plv/ries fi. fa, and a vendi\u00fconi exponas, which might have followed in ease of a levy, to the process of taking a transcript to the County of Guilford, and having the judgment docketed, and an execution issued from that county But the case does not come within that provision, for the party had \u201cacquired no lienL The lien acquired by fi. fa. expires at its return, unless there be a levy, and' even the lien acquired, by a levy is waived by taking out an alias fi.fa. instead of following up the levy, by a ven. ex.\nThis fatal defect, to-wit: The want of a lien, cannot be supplied by any analogy drawn from Johnson v. Sedberry, 65 N. C. 1, which was relied on for that purpose.\nPer Curiam. There is no error.", "type": "majority", "author": "Pearson, C. J." } ], "attorneys": [ "Scott c& Scott for appellant:", "Hilla/rd efi Gilmer, for appellees." ], "corrections": "", "head_matter": "W. D. ROSS et al. v. HARRISON ALEXANDER.\nPrior to the adoption of the C. C. P., the lien acquired by fi.fa expired at its return.\n\u2022Therefore, judgments obtained at Spring and Pall Terms, 1869, of Guilford Superior Court, and docketed respectively during the Terms of said Court, have priority over a judgment obtained in 1867, upon which fi.fas. regularly issued up to Pall Term, 1868, of the'Superior Court of Alamance, and no returns made thereto, at which Term the said judgment was transferred and entered on the'judgment docket of Alamance Superior Court, but not docketed in Guilford County till 34th December, 1869.\nJohnson v. Sedberry, ante 1, cited and approved.\nMotion for the application ot certain moneys in the hands '-\u25a0of the Sheriff\u2019ot Guilford County, heard before Tour-gee, J., at Bpring Term, 1871, of Guilford Superior Court.\nThe facts were that one ~W. D. Ross obtained a judgment \u00a1at Spring Term, 1869, of Guilford Superior Court, against Robert D. Thorn, andhadtlie same docketed the 1st'of March, 1869. Four other judgments were rendered at the Fall Term, 1869, o\u00ed said Court, against the said Eobert D. Thorn. James \u00a35. Scott obtained a judgment against Thorn at Spring Term, 1867, o\u00ed Alamance Superior Court of law; a transcript of which said judgment was docketed in Guilford County on the 24th of December, 1869.\nThe Sheriff returned at Spring Term, 1869, that he had in his hands five hundred and seventy dollars arising from the sale of the property of Eobert D. Thorn, having the six executions based upon the foregoing judgments, and asking the .advice of the Court as to how the said money shall be applied; and thereupon, the plaintiffs, other than James S. Scott, moved the Court for the application of the money to the payment of their executions to the exclusion, of the execution of James S. Scott.\nAll of the said plaintiffs were present in Court, accepted service of a rule, and consented to go into a hearing of said motions. His Honor found as a fact, that executions wore regularly 'issued on the judgment in favor of James S. Scott, to the \u25a0Sheriff of Guilford county, up to Fall Term, 1868, of the Superior Court of Alamance county, at which Term the said judgment was transferred, and entered on the judgment docket of Alamance Superior Court. The executions issued as aforesaid were returned by the Sheriff of Guilford, without a levy, \u25a0and that no execution on said judgment was issued from Fall Term, 1868, to Spring Term, 1869, nor from Spring Term, 1869 to Fall Term 1869, and no transcript of said judgment was docketed in Guilford County until December 24th, 1869.\nUpon the foregoing facts, his Honor adjudged that the money brought into Court be applied first to the payment of the Eoss judgment, then ratably amongst the four judgments docketed on the 6th of September, 1869, and the remainder td the judgment of James S. Scott. From which order Harrison Alexander, assignee of the said Scott, appealed.\nScott c& Scott for appellant:\n1. Causes in law and equity shall be transferred without prejudice by reason of the change. See Constitution, Art. 4, sec. 25.\n2. By Legislative construction this has been made to apply to judgments as well. See C. C. P., sec. 403, and Johnson v. SecTberry et al., 65 N. C. 1. \u201c No lien acquired before the ratification aforesaid, shall be lost by any change of process.\u201d\n3. Docketed in Guilford Superior Court December 24th, 1869. That was in time, for by sec. 255, O. C. P., executions can issue any time within three years \u2014 this section applies to existing judgments. See Harris et at. v. Hides, Hill & Oo., et al., 63 N. C. 653. Therefore, if a year and a few days did pass, from the time execution was last returned, that did not prejudice the defendant\u2019s rights.\n4. The lien of an alias execution relates to the teste of the original. See Alien v. Plummer, 63 N. C. 307.\n5. The execution of the \u00a1oldest teste is entitled to prioritjn Hwrm v. Nichols c& Jones, 63 N. C. 107.\n6. Defendant\u2019s execution was in hands of Sheriff at the time of sale and for near two and a half months before. See 65 N. 0.1.\nTf we ought to have docketed our judgment by transcript in Guilford before others, in order tojprocure our lien, then the Constitution and the Code secs. 400, 40.3, had as well not be p\u00e1\u00e1sed \u2014 they are valueless. Without such provisions we would have been ahead of them by that means anyhow. See rules 17 and 18, 63 N. C.\nHilla/rd efi Gilmer, for appellees." }, "file_name": "0576-01", "first_page_order": 586, "last_page_order": 589 }