After much consideration bestowed upon this cause, rendered exceedingly difficult by reason of the cumbersome and illegible record which accompanies it, we feel ourselves constrained to remand *Page 140 it to the end that additional facts may be ascertained and the conclusions of law declared thereon.
The jurisdiction of this court is purely an appellate one, to be exercised only after the court below has passed upon all the facts essential to a proper settlement of the contention between the parties, and found them to be one way or the other, and thereupon, separately, declared the conclusions of law. Foushee v. Pattershall, 67 N.C. 453. And, except as regards some interlocutory orders, such as granting injunctions, the appointment of receivers and the like, the facts as thus found are concluded, so far as we are concerned. Clegg v. Soapstone Co., 66 N.C. 391;Powell v. Weith, Ib., 423.
In the notice of his motion given by the defendant, Bland, to the officers of the court, the dormancy of the judgment is especially assigned as one of the causes why the execution in question should be recalled and cancelled, and we can see from the statement of the case, and the character of some of the evidence which accompanies it, that the point was in fact made before his Honor, and still, (166) he wholly omits to make any finding in regard thereto, or to declare his opinion of the law upon it.
We are not at liberty to assume, from the fact that his Honor declined to grant the motion, that he found the fact to be that the judgment was not dormant, for as was said in Foushee v. Pattershall, that would be to supply by intendment just the facts necessary to support the judge's conclusions, and would of course render it impossible in any case to assail his judgment successfully.
It is said, however, that admitting the judgment to have been dormant, and that the execution had issued irregularly, it still ought not to have been set aside to the prejudice of Skinner who had acquired rights under it, and had been allowed to intervene for their protection. There lies the very difficulty in the case, and renders more apparent the necessity for additional findings. We are completely in the dark as to the grounds upon which his Honor's refusal to recall the execution proceeded — whether because the judgment was not in fact dormant, or whether because Skinner had acquired interests under it. Indeed as to this latter matter there is no finding at all, nor as to the extent to which he had knowledge of the irregularities connected with the issuing of the execution (if such there were) and while it is true, ordinarily, that a court will not set aside an execution under which a stranger has purchased, merely upon the score of its being irregular, still if the purchaser, have actual notice of the irregularity, then he can no more shield himself under it than can the plaintiff at whose instance it issued. *Page 141
The judgment below is reversed, and the cause remanded to the end that the court may find the facts more fully and state its conclusions of law thereon, and that the cause may be proceeded with according to law.
Before parting with the case, however, there is one point made by counsel for defendant which we deem it best to decide now, (167) as we may thereby remove an obstacle in the way of another trial. As we understand the counsel, he insists that what purports to be a judgment in behalf of the office against Bland, is in fact no judgment, such as could be docketed and thereby made to become a lien on the defendant's lands. We cannot take this view of it. The statute (Rev. Code, ch. 102, sec. 24,) provides that when suits are determined and the fees due to officers are not paid by the party for whom services have been rendered, the clerks of the courts shall issue executions therefor to the sheriffs, who shall levy them as in other cases, and that to said executions shall be annexed a bill of costs written, so as plainly to show each item of costs, etc. Now, every execution presupposes a judgment of some sort, and the right given to issue the one implies the existence of the other.
In Clerk's Office v. Allen, 52 N.C. 156, a similar objection seems to have been taken, and it was held that while strictly not such a judgment as would be rendered between parties in an adversary suit, it was still such an order as every court has a right to make to enforce the taxing and payments of costs due to officers and witnesses, and we can see no good reason why such a judgment more than any other, should be deprived of the security to be acquired by being docketed — and it fully answers all the purposes of the statute to enter upon the docket all the items of the costs, so as plainly to show on what account they are taxed.
Our conclusion therefore is the same as found by his Honor below, that there was a judgment rendered against the defendant and in favor of the officers of the court at Fall Term, 1870, and that the same was then docketed and became a lien upon all the lands of the defendant within the county. Let this opinion be certified.
Error. Reversed.
Cited: S. v. Wallin, 89 N.C. 580; Morris v. Morris, 92 N.C. 143; Lytlev. Lytle, 94 N.C. 685. *Page 142
(168)