State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_1 > GS_1-313

§1‑313.  Form of execution.

The execution must be directedto the sheriff, or to the coroner when the sheriff is a party to or interestedin the action. In those counties where the office of coroner is abolished, oris vacant, and in which process is required to be executed on the sheriff, theauthority to execute such process shall be vested in the clerk of court;however, the clerk of court is hereby empowered to designate and direct byappropriate order some person to act in his stead to execute the same. Theexecution must also be subscribed by the clerk of the court, and must refer tothe judgment, stating the county where the judgment roll or transcript isfiled, the names of the parties, the amount of the judgment, if it is formoney, the amount actually due thereon, and the time of docketing in the countyto which the execution is issued, and shall require the officer substantiallyas follows:

(1)        Against Property –No Lien on Personal Property until Levy. – If it is against the property of thejudgment debtor, it shall require the officer to satisfy the judgment out ofhis  personal property; and if sufficient personal property cannot be found,out of the real property belonging to him on the day when the judgment wasdocketed in the county, or at any time thereafter; but no execution against theproperty of a judgment debtor is a lien on his personal property, as againstany bona fide purchaser from him for value, or as against any other execution,except from the levy thereof.

(2)        Against Property inHands of Personal Representative. – If it is against real or personal propertyin the hands of personal representatives, heirs, devisees, legatees, tenants of real property or trustees it shall require the officer to  satisfy thejudgment out of such property.

(3)        Against the Person.– If it is against the person of the judgment debtor, it shall require theofficer to arrest him,  and commit him to the jail of the county until he paysthe judgment or is released or discharged according to law. The execution shallinclude a statement that if the defendant is  an indigent person he is entitledto services of counsel, that he may petition for preliminary release on thebasis of his indigency, that if he does so he will have an opportunity within72 hours to suggest to a judge his indigency for purposes of appointment ofcounsel and provisional release, and that the judge will thereupon immediatelyappoint counsel for him if it is adjudged that he is unable to pay a lawyer.

(4)        For Delivery ofSpecific Property. – If it is for the delivery of the possession of real orpersonal property, it shall require the officer to deliver the possession ofthe same, particularly describing it, to the party entitled thereto, and may atthe same time require the officer to satisfy any costs, damages, rents, orprofits recovered by the same judgment, out of the personal property of theparty against whom it was rendered, and the value of the property for which thejudgment was recovered, to be specified therein, if a delivery cannot be had;and if sufficient personal property cannot be found, then out of the realproperty belonging to him on the day when the judgment was docketed, or at anytime thereafter, and in that respect is deemed an execution against property.

(5)        For Purchase Moneyof Land. – If the answer in an action for recovery of a debt contracted for thepurchase of land does not deny, or if the jury finds, that the debt was socontracted, it is the duty of the court to have embodied in the judgment thatthe debt sued on was contracted for the purchase money of the land, describingit briefly; and it is  also the duty of the clerk to set forth in the executionthat the said debt was contracted for the purchase of the land, the descriptionof which must be set out briefly as in the complaint. (C.C.P.,s. 261; 1868‑9, c. 148; 1879, c. 217; Code, ss. 234‑236, 448; Rev.,s. 627; C.S., s. 675; 1971, c. 653, s. 2; 1977, c. 649, s. 2.)