Lute v. . Reilly , 65 N.C. 20 ( 1871 )

His Honor being of opinion that the sheriff was not bound to execute the process, unless his fees were paid for laying off the homestead, and that his return on the process was not insufficient, refused the motion to amerce. From this order the plaintiff appealed. This was a motion to amerce the sheriff for failing (21) to execute process, and for making an insufficient return.

The case states that a fi. fa. for costs, duly issued and came into the sheriff's hands in full time. At the time the process was placed in the sheriff's hands, a fee of sixty cents was paid him by the plaintiffs.

The return of the sheriff is as follows, to-wit: "Defendant does not petition for homestead, and the plaintiffs refuse to pay homestead fees. No action, the necessary fees not paid." An officer cannot be required to execute process unless his fees be paid or tendered by the person in whose interest the service is to be rendered. C.C.P., Sec. 555.

If the homestead is laid off at the instance of the owner, he is liable for the sheriff's costs; if not so claimed by the owner, the fees must be taxed in the bill of costs. Acts 1868-'9, ch. 137, sec. 16.

Before levying upon any homestead, owned and occupied, the sheriff or other officer charged with such levy, shall summon three appraisers, whose duty requires them to value and lay off the homestead exemption of the owner; and the levy can only be made upon the excess of homestead not so laid off.

If the homestead is laid off at the instance of the creditor, to ascertain if there is an excess, out of which his debt may be made, the services are rendered in this interest, within the meaning of C.C.P., Sec. 555.

And this seems reasonable, for since the law guards the homestead with such jealous care that it will not permit the debt itself to be collected out of it, surely it was not the purpose to allow the costs, which are but a mere incident, to exhaust the homestead.

If it be said that it is a hard measure to make the creditor pay the costs in such cases, the reply is, ita lex scripta est.

The judgment of the Superior Court is affirmed.

Per curiam.

Judgment affirmed. Cited: Taylor v. Rhyne, 65 N.C. 531; Lambert v. Kinney, 74 N.C. 350;Whitmore v. Hyatt, 175 N.C. 118.

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