Where a scire facias to enforce the levy of an execution had been dismissed in the county court: Held, that it was proper for the Superior Court, upon reversing that order, to award a procedendo.
( Mardre v. Felton, ante, p. 279; Riddick v. Hinton, ante, p. 291, and Morehead v. R.R., 7 Jon., 500, cited and approved.)
The order for a procedendo to the county court was erroneous, for the Whole case had been brought up into the Superior Court. Shoffner v. Fogleman, Bus., 280; Evans v. Governor's Creek Co., 5 Jon., 331; Morehead v. Atlantic N.C.R.R., 7 Jon., 500; Purvis v. Robinson, 4 Jon., 96.
PEARSON, C.J.
The merits of the case being disposed of in Mardre v. Felton, ante, 279, and (treating this as a motion, after notice, for an order to sell the land levied on), also in Riddick v. Hinton, ante, 291, Mr. Bragg insists there is error in awarding a procedendo to the county court.
We do not concur in that view. The appeal from the county to the Superior Court did not bring up the whole case, but only the motion for an order of sale, leaving the original judgment and levy in the county court, to which court the sheriff must make return, in order to have satisfaction of the judgment entered there. We are, therefore, of opinion that the further proceedings should be had in the county court, and that it was proper to award a procedendo. Morehead v. R. R. Co., 7 Jones, 500.
PER CURIAM. Judgment affirmed. Motion for an order of sale should be allowed. Issue a writ of procedendo.
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