State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_1 > GS_1-440_46

§1‑440.46.  When plaintiff prevails in principal action.

(a)        If judgment isentered for the plaintiff in the principal action, the sheriff shall satisfysuch judgment out of money collected by him or paid to him in the attachmentproceeding or out of property attached by him as follows:

(1)        After paying thecosts of the action, he shall apply on the judgment as much of the balance ofthe money in his hands as may be necessary to satisfy the judgment.

(2)        If the money soapplied is not sufficient to pay the judgment in full, the sheriff shall, uponthe issuance of an execution on the judgment, sell sufficient attachedproperty, except debts and evidences of indebtedness to satisfy the judgment.

(3)        While the judgmentremains unsatisfied, and notwithstanding the pendency of the sale of anypersonal or real property as provided by subdivision (2) of this subsection,the sheriff shall collect and apply on the judgment any debts or evidences ofindebtedness attached by him.

(4)        If, after theexpiration of six months from the docketing of the judgment, the judgment isnot fully satisfied, the sheriff shall, when ordered by the clerk or judge, asprovided in subsection (b) of this section, sell all debts and notes and otherevidences of indebtedness remaining unpaid in his hands, and shall apply thenet proceeds thereof, or as much thereof as may be necessary, to thesatisfaction of the judgment. To forestall the running of the statute oflimitations, earlier sale may be ordered in the discretion of the court.

(b)        In order to securethe sale of the remaining debts and evidences of indebtedness as provided insubsection (a)(4) of this section, the plaintiff may move therefor, eitherbefore the clerk or the judge, and shall submit with his motion

(1)        His affidavit settingforth fully the proceedings had by the sheriff since the service of theattachment, listing or describing the property attached, and showing thedisposition thereof, and

(2)        The affidavit of thesheriff that he has endeavored to collect the debts or evidences ofindebtedness and that there remains uncollected some part thereof.

Upon the filing of suchmotion, the court to which the motion is made shall give the defendant or hisattorney such notice of the hearing thereon as the court may deem reasonable,and by such means as the court may deem best. Upon the hearing, the court mayorder the sheriff to sell the debts and other evidences of indebtednessremaining in his hands, or may make such other order with respect thereto asthe court may deem proper.

(c)        In case of the saleof a share of stock of a corporation or of property in a warehouse for which anegotiable warehouse receipt has been issued, the sheriff shall execute anddeliver to the purchaser a certificate of sale therefor, and the purchaser shallhave all the rights with respect thereto which the defendant had.

(d)        Upon judgment inhis favor in the principal action, the plaintiff is entitled to judgment on anybond taken for his benefit therein.

(e)        When the judgmentand all costs of the proceedings have been paid, the sheriff, upon demand ofthe defendant, shall deliver to the defendant the residue of the attachedproperty or the proceeds thereof. (1947, c. 693, s. 1; 1951, c.837, s. 9.)