Pender County NcArchives Court.....K. F. Powers, Sheriff, W. W. Miller V. 1895
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Connie Ardrey n/a January 8, 2010, 5:48 pm

Source: Nc Reports
Written: 1895

W. W. Miller v. K. F. Powers, Sheriff
September Term, 1895

Process - Sheriff's Return - Recitals in Return Prima Facie True

The recitals in a sheriff's return of process are prima facie evidence of the 
truth of the statements therein.

Proceeding for amercement of the sheriff of Pender County, heard before Brown, 
J., at Spring Term, 1894, of Pender Superior Court.

On the 6th of February, 1893, an execution was issued upon a judgment in favor 
of W. W. Miller against George Washington, and W. T. Bannerman, surety on his 
appeal bond, for the sum of fifty-six dollars and eighteen cents, docketed 
March 14, 1892, with interest from that date, and the sum of seventy-two 
dollars and five cents costs. Said execution was delivered to the sheriff's 
deputy, W. T. Bannerman, by the attorney for the plaintiff on February 6, 1893.

On March 15, 1893, being on the third day of March Term, 1893, which convened 
on March 13, the sheriff returned said execution into this court with the 
following endorsement: "Returned March 15, 1893. Served on defendant 
Washington, and two dollars received on the within execution. No fees paid or 
tendered to lay off the defendant's homestead." The court found that no fees 
were tendered or paid to set apart the homestead of either of the defendants.

The sheriff and his office deputy, W. T. Bannerman, testified that when the 
execution was filed in the sheriff's office by the plaintiff's attorney, the 
lawful fees, required by law to be prepaid, were demanded and that the 
plaintiff's attorney paid only fifty cents, and that, accordingly, the 
execution was served upon the defendant George Washington, who paid two 
dollars. That plaintiff refused to pay the fees to set apart the homestead of 
the defendants, and the sheriff proceeded no further but made the return of 
the execution aforesaid.

The plaintiff offered evidence tending to prove that the plaintiff paid to the 
sheriff's deputy one dollar and fifty cents at the time the execution was 
filed in the sheriff's office and that nothing more was done.

The evidence is very conflicting. The court being of the opinion that the 
burden of proof is upon the plaintiff to show to the court by a preponderance 
of evidence that he tendered the fees required by law to the sheriff or his 
deputy when he filed said execution, adjudged that the plaintiff did not 
tender to the sheriff or his deputy the fees required by law for serving the 
said execution upon the defendants, and further, that the plaintiff did not 
tender the fees setting apart the homestead and personal property extensions, 
and thereupon discharged the rule against the defendant and taxed the 
plaintiff with the costs of the proceeding. From this judgment the plaintiff 
appealed.

Mr. H. L. Stevens, for plaintiff (appellant)
No counsel, contra

[NC Supreme Court]
Avery, J.: 
Upon the authorities cited we think there was no error in the ruling 
complained of and the judgment of the court below must be affirmed.
Affirmed.

[See court case for Judge Avery's complete findings]

File at: http://files.usgwarchives.net/nc/pender/court/kfpowers1278wl.txt

This file has been created by a form at http://www.poppet.org/ncfiles/

File size: 3.6 Kb