Spalding Division of Questor Corp. v. DuBose

265 S.E.2d 501 (1980)

SPALDING DIVISION OF QUESTOR CORPORATION, Dallas Electrical Contractors, Inc., Dallas Plumbing Company, W. R. Mathis and Witten Supply Company v. Horace M. DuBOSE, III, Trustee, and Robert J. Bernhardt, Trustee, as their interests may appear.

No. 7927SC1144.

Court of Appeals of North Carolina.

May 6, 1980.

*502 Charles D. Gray III, Gastonia, for plaintiffs-appellees Dallas Electrical Contractors, Inc. and Dallas Plumbing Company.

Stewart & Lowe by Michael David Bland, Charlotte, for plaintiff-appellee W. R. Mathis.

*503 Horace M. DuBose III, Gastonia, and Lindsey, Schrimsher, Erwin, Bernhardt & Hewitt by Robert J. Bernhardt, Charlotte, for defendants-appellants.

HARRY C. MARTIN, Judge.

Defendants contend the superior court did not have jurisdiction of the cause of action alleged by plaintiffs as it is a collateral attack upon the judgment of confirmation by the clerk of superior court. If the court had jurisdiction, we are faced with the question whether the clerk had authority under Article 29B of Chapter 1 of the General Statutes of North Carolina to permit defendants to use their judgments as cash in the payment of their bid to the sheriff on the execution sale.

The clerk has original jurisdiction to enter orders confirming execution sales. "No sale of real property may be consummated until the sale is confirmed by the clerk of the superior court." N.C.Gen.Stat. 1-339.67. Appeals from the clerk of superior court to the judge are controlled by N.C.G.S. 1-272, containing the following: "An appeal must be taken within ten days after the entry of the order or judgment of the clerk . . . ." The appeal must be taken within ten days after the clerk's judgment to entitle the judge of the superior court to review the ruling. Muse v. Edwards, 223 N.C. 153, 25 S.E.2d 460 (1943). There must be an appeal from the clerk's judgment to give the superior court jurisdiction. See Ramsey v. R.R., 253 N.C. 230, 116 S.E.2d 490 (1960). The superior court does not acquire jurisdiction where there is no appeal from the clerk's judgment. Gravel Co. v. Taylor, 269 N.C. 617, 153 S.E.2d 19 (1967).

Plaintiffs did not appeal from the judgment of confirmation by the clerk. Defendants contend plaintiffs' action is a collateral attack upon the clerk's order and that it cannot be maintained as their remedy is by appeal from the order of the clerk. Plaintiffs argue they are not attacking the clerk's order but are seeking to set aside the sheriff's deed. Plaintiffs ask in their complaint that the execution sale be declared null and void because defendants did not pay their bid in cash. They also ask that the sheriff's deed be declared void for the same reason. The court in its summary judgment declared that the order of the clerk is void. We hold plaintiffs are collaterally attacking the clerk's order.

Plaintiffs cannot avoid the execution sale by collateral attack; they must proceed directly, either by motion in the cause or appeal. Williams v. Dunn, 163 N.C. 206, 79 S.E. 512 (1913); Henderson v. Moore, 125 N.C. 383, 34 S.E. 446 (1899). The proper remedy to set aside an execution or a sale thereunder is by motion in the cause and not by independent action. Henderson County v. Osteen, 292 N.C. 692, 235 S.E.2d 166 (1977); Finance Co. v. Trust Co., 213 N.C. 369, 196 S.E. 340 (1938). Where the proceeding complained of is before the clerk, the additional remedy of appeal to the superior court judge is available. N.C. Gen.Stat. 1-272.

We hold the superior court erred in denying defendants' motion to dismiss and in entering summary judgment for plaintiffs. Plaintiffs have mistaken their remedy. With this ruling, we do not reach the other issue raised on the appeal.

The judgment of the superior court is reversed and the cause is remanded to the Superior Court of Gaston County for entry of a judgment allowing defendants' motion to dismiss plaintiffs' action.

PARKER and HILL, JJ., concur.