The plaintiff recovered judgment against the defendants before a justice of the peace on June 14th, 1873, for the sum of $104.57, and costs.
No execution issued thereon and in June or early in July, 1878, he brought his action on said judgment but failed to prosecute the same and submitted to a nonsuit.
Thereafter, on the 16th day of the month last mentioned, he obtained a transcript of the judgment from the justice and caused the same to be filed and docketed in the office of the superior court clerk of the county. On the same day he sued out execution returnable to fall term of the court, under which certain land of the defendant, Mary C. Williams, was levied on and sold, himself becoming the purchaser for the sum of ten dollars. On November 8th previous to the sale, the defendant served notice on the plaintiff of an intended motion to be made at the ensuing term to strike the transferred judgment from the record, and to set aside the execution under which the sheriff was then proceeding. The motion was accordingly made, and the appeal from the refusal to allow it brings up for consideration the merits of the defendant's application.
While a judgment rendered by a justice on its removal to the superior court becomes the judgment of that court, as if originally entered there, admitting of like remedies for its enforcement and subject to the same conditions, and may be revived when dormant as provided in C. C. P., §§ 255, 256, yet when not so removed, its vitality is lost after the lapse of a year from its rendition, and final process cannot then be sued out without further action on the part of the *Page 385 plaintiff. Bat. Rev., ch. 63, § 20, Rule 14. As the purpose of the removal allowed by the statute is to afford the creditor "the more efficient and far-reaching executions and process of the superior court" as well as the advantage of the immediate lien on the debtor's land, as declared in the opinion in Broyles v. Young, 81 N.C. 315, it may admit of question whether if such results are to follow, the transfer should not be made before the dormancy supervenes, so that as the judgment could be enforced by process from the justice before and at the time of transfer, it was in a condition to be enforced at once upon the docketing by the appropriate remedies afforded in the court to which it is removed. But however this may be, and we intend to express no opinion on the point, the removal of the judgment rendered by the justice to the superior court and the docketing of it there, cannot have the effect of restoring its lost life and activity to a judgment which by lapse of time had become incapable of being enforced by process emanating from the tribunal in which it was rendered.
If dormant when removed, it remains dormant still, with the difference that while before, a new action would be necessary and a new judgment rendered upon the first, it becomes when docketed in the superior court essentially a judgment of that court, and falls under the provisions of the law applicable to original judgments in that court, alive for three years for the purposes of process, and after a delayed action for that period without execution, renewed in the same manner.
In the present case five years had passed since the rendition of the judgment by the justice before its removal, and had it been at once removed it would have become dormant even in the superior court; certainly the plaintiff's delay ought not to defeat the limitations prescribed for the issuing of final process in both tribunals.
But if a judgment which has become dormant can be *Page 386 legally transmitted and docketed, it is still a dormant judgment authorizing execution only when on notice, motion and proof, allowed by the court as provided in C. C. P. § 256. It therefore issued irregularly and may be set aside at the instance of the debtor, Oxley v. Mizle, 3 Murp. 250; Dawson v. Shepherd, 4 Dev. 497; State v. Morgan, 7 Ired. 387, unless property sold under it has been bought by a stranger, when it will not be disturbed. Murphy v. Wood, 2 Jones 63.
When the plaintiff who sues out the process is himself the purchaser, no new rights having intervened, and the order withdrawing the execution and annulling the attempted sale under it, can be made to adjust the matter and restore the parties to their antecedent relations, the relief will not be refused. Indeed it has been declared that when a plaintiff sues out execution upon a dormant judgment and purchases property of the defendant under it, he acquires no title thereto. Weaver v. Cryer, 1 Dev. 337. In this case Chief Justice TAYLOR thus states the rule of law:
"But with respect to the plaintiff in the judgment, as he sued out the execution irregularly, he cannot derive title under the sale so affected, though the exception could not be taken to it, if a stranger had become the purchaser."
In a separate opinion HENDERSON, J, also says that "as to the plaintiff in the judgment, the execution is no protection to him. He acted as a wrong doer in suing it out and is liable for the acts of the officer who acted under it, the maxim being qui facit per alium facit per se.
Whether the opinion of the chief justice is in harmony with the current of later decisions, which hold that process issuing upon a dormant judgment is voidable merely, and confers authority upon the officer to sell, unless set aside at the instance of the defendant, the defendant's motion made in apt time ought to have been granted and the abused process of the court recalled, so as to afford no protection, real or apparent, to the proceeding to obtain the defendant's land, *Page 387 prosecuted as it was with full knowledge of the defendant's purpose to apply to the court to have it set aside.
There is error and this will be certified to the end that the execution be withdrawn and other proceedings had according to law.
Error. Reversed.