Shelton v. . Fels , 61 N.C. 178 ( 1867 )

At July Term, 1866, of that court, Abisha Slade confessed judgment in an action of debt to Lazarus Fels, and, at the same term the following entry was made on the record: "Execution stayed by order of plaintiff until after April Term, 1867." Before the next term of the court Slade conveyed all his estate to W. N. Shelton, in trust for certain of his creditors, and thereupon Fels ordered execution to issue, and this was levied on Slade's lands. At October Term Shelton moved to set the execution aside as having been issued in contravention of the above entry. Slade refused to let his name be used for such motion, and the court disallowed it.

Upon the motion being renewed in the Superior Court at Fall Term, 1866, before his Honor, Fowle, J., it was again disallowed, (179) and the trustee appealed to this Court. The reason of the cases in which it has been held that the defendant in the execution may move to set aside such process, applies here in behalf of the trustee, as the defendant has stripped himself since the judgment of all property that might have been affected thereby, and such property has come to the trustee. Compare the cases Wood v. Bagley, 12 Ire., 83; Murphyv. Wood, 2 Jon., 63, and Cody v. Quinn, 6 Ire., 191. The entry upon the docket by the plaintiff, in the suit of Fels v. Slade (the same in which this motion is made) of a cesset executio, until April Term, 1867, did not annual or suspend the judgment so as to avoid a fierifacias issued on it. Cody v. Quinn, 6 Ire., 191. But still it was so far binding between the parties, that the court would compel them to observe it. And the plaintiff, Fels, having had a fieri facias issued upon it before the expiration of the time, it would have been proper for the court, upon the motion of Slade, the defendant in that suit, to set aside the execution.

Observe, we say, upon the motion of Slade; for, very clearly, no one except him could maintain the motion. And so far from this being Slade's motion, he appeared in court and protested against the motion of Shelton. Slade had the right either to insist upon or to waive the cesset executio, and he did the latter.

PER CURIAM. There is no error.

Cited: Jacobs v. Burgwyn, 63 N.C. 195, 197; Knott v. Taylor, 99 N.C. 515.

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