Year: 1869




Procedure in certain Cases.


SECTION l. Tile General assembly of North
Carolina do enact, That all civil actions
shall be commenced 10y the issuing of sum-
mons.


Sec. Q. The summons shall run in the
name of the State, be signed by the Clerk
of the Superior Court of the Comfy having
jurisdiction to try the action, and under the
seal OF the Court, and shall be directed to
the sheriff of the county in which the de-
tendant resides or may be found. 1t shall
be retunable to the regular term of the Su-
perior Court of the county where the plain
tlffs, or one or more of them, or the defend
ants reside, and shall command the Sheriff,
or other proper officer to summons the de-
fendauts to appear at the next ensuing
term of the Superior Court and answer the
complaint of the plaintiff, and shall be da-
ted on the day its issue.


SEC. 3. The officer to whom the summons
is addressed, shall note on it the day of its
delivery to him, and shall execute it at least
ten days before the beginning Of the term to
which it shall be rcturnabe, and shall re-
turn it on the first day of the term


SEC. 4. The plaintiff shall file his COM
plant in tile Clerks office on or before the
third day of the term to which the action
is brought, otherwise the suit shall, on mo-
ton. be dismissed by the Court at the cost
OF the plaintiff


SEC 5. The defendant shall appear and
dcmur, plead or answer at the same term to
which the summons shall be returnable, 9TH
erwise the plaintiff may have Judgment by
default, as is now allowed by law.


SEC 6. The plaintiff shall join in the de-
murrer or reply to the answer at the same
term at which such demurrer or answer NAV
be filed. the issues whether of law or of fact
shall stand for trial at the next term sue
ceeding the term at which the peadings are
completed


Sec. z. That all writs of summons in civil
actions now in the hands of the Sheriff or
Clerk shall be returned by said officers to
the next term of the Superior Court, and
such writs, together with all wrts of sum.
mons in civil actions heretofore returned IN
which no final judgment has been rendered,
shall be placed by the Clerk ON the docket
OF the Superior Court at the next ensuing
term, and the pleadings in such actions
shall he conducted according 10 the rules
prescribed in this act Provided, That all
civil actions in which issues have been
joined shall stand for trial at Spring term,
1869. Prooided further, that issues of law
or fact which have been joined in pursuance
OF laws and ordinances heretofore passed
and known as "Stay laws" shall be consid-
cred as having been illegally joined, and all
such actions shall he placed upon the APP
pearance dockets at Spring term, 1869, by
the Clerks of Superior Courts, and the
pleadings therein shall he made up and is
sues Joined at such term as provided in this
act, unless in any county the time of said
term shall have passed, in which case such
action shall be placed upon the trial docket
at Fall term, 1862


SEC. 8. No sale of any property, real or
personal, under executions issued from any
court in this State, shall be valid to pass
title, unless the property, whether real or
personal, shall bring three-fourths of the
value thereof, and on return of such execu-
tions the sheriff or other officer shall make
return of the amount bid for the same, and
whether the amount was equal to three
fourths of such value.


Sec. 9. In order to ascertain the value of
the property exposed to sale, under the pre-
ceding section. it shall be the duty of the
creditor and debtor each to choose one ap-
praiser, who shall he citizen of the county
in which the property is situated, to examine
and appraise the property to be exposed to
sale under execution and shall certify such
appraisement tn the sheriff or other officer;
and in case such appraisers shall not be able
to agree upon the valuation of any property,
they shall choose third person, and the
appraisement of the three or Il majority of
them shall be taken as the true value thereof,
and in case either party fail to make the
choice, the sheriff shall make the selections
for him or them. Such appraisement, certi-
fed as before directed, shall be returned by
the sheriff with the execution to the court
from which it issued; Procided, That no
proceedings under this section shall preju-
dice the lien of any creditor, or discharge
the sheriff from any liability for the safe
keeping of such property.


SEC lO. Ihat no property shall be sold
under any deed of trust or mortgage, until
the debts secured in said deed of trust or
mortgage, are reduced to judgments accord
ing to the provisions of this act


SEC. II. All executions shall be tested as
of the term next before the day ON which
they issued, and shall be returnable 10 the
term of the court next after that from which
they bear test; Provided, That no sale of
property under execution obtained at fall
term, 1869, shall be made until thirty days
before spring term, 1870.


SEC. 12. The provisions of this act shall
not apply to proceedings by attachment.


Sec. 13. Nothing in this act shall operate
to repeal the provisions of the Code of Civil
Procedure, which allows defendants to be
arrested and held to bail in certain cases.


SEC. IA. All laws and clauses of laws in
consistent with the provisions of this act
arc suspended until the first day of January,
Ammo Domini. eighteen hundred and seven
ty-one; and this act shall be in force from
and after its ratification, and shall continue
in force until the first day of January, eigh-
teen hundred and seventy-one.


Passed March 16, 1861