O'Briant v. . Wilkerson

In the seventh allegation of the complaint the plaintiff declared that the defendant Rigsbee, as sheriff, under an execution issued against the plaintiff in this action in favor of the other defendants, Wilkersons, took the property described in the complaint from his possession and sold it to satisfy the execution; but it was further (305) alleged that the judgment on which the execution was issued was void because the summons in the action was not served upon the plaintiff and neither did he appear on the trial. Rigsbee in his answer averred that the execution was regular on its face and was issued to him from a court of competent jurisdiction; and the other defendants averred that the judgment was regular in all respects and that the plaintiff in this action, the defendant in that, made an appearance on the trial at which the judgment was procured. At the conclusion of the plaintiff's evidence, the now almost usual motion for judgment, as in case of nonsuit, was made under chapter 109, Laws 1897.

The plaintiff was the only witness, and he testified as follows: "I was the owner of a brick machine of the make of H. C. Bruner Co.; it was made of iron, and was the ordinary machine for making brick. The defendant Rigsbee took the machine in the fall of 1895 from a shed on my father's land. I forbade the sheriff from taking it. I was not using the machine the day it was taken. Sheriff Rigsbee sold the machine."

There could be no liability on the part of the defendant Rigsbee under any aspect of the case, for his acts were performed under an execution regular in form and issued from a court of competent authority. Farleyv. Lea, 20 N.C. 169. As to the other defendants, before a recovery could be had against them, the plaintiff was compelled to show that the judgment on which the execution was issued was void for the reason that the admission having been made that the defendant Rigsbee acted as sheriff under an execution in his hands, there was a presumption of the law that the judgment was regular. That allegation of the complaint could not be regarded as surplusage, as a statement of (306) evidentiary matters. The complaint, it is true, might have been sufficient without it, and if the defendants, other than the sheriff, had undertaken to justify their action by an introduction of the execution or judgment as evidence, the plaintiff could have shown a lack of summons and that he made no appearance at the trial, if such was the fact. But, it having been alleged in the complaint that the sheriff sold the property under an execution, it became incumbent on the plaintiff to show that the seizure and sale were unlawful. This the plaintiff failed to do. No part of his testimony had any reference to the nature of the judgment. He relied upon the proof of the fact that the property was once his, and waited for the defendants to prove the regularity of the judgment on which the execution was issued, just as if he had left out the seventh allegation in his complaint. There was no error in the ruling of his Honor.

No error.

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