82 N.C. 334 | N.C. | 1880
On the 6th of March, 1865, the defendant was appointed guardian of Mildred Peebles and others, and the plaintiff became one of the sureties on his guardian bond, and an action was brought against the principal and sureties and judgment recovered against them upon the bond at ......... *335
term of the superior court of Northampton county for the sum of fifteen thousand three hundred and thirty-seven dollars and twenty-eight cents. Execution was issued thereon and the plaintiff was compelled to pay the sum of eight thousand six hundred and one dollars and eighty-four cents as surety to defendant. And afterwards the plaintiff brought an action for the said sum so paid by him against the defendant, at spring term, 1878, of said court, recovered a judgment in said action for the sum of eleven thousand four hundred and forty-eight dollars and thirty cents, with interest on the said sum of eight thousand and odd dollars, from which judgment the defendant appealed to this court, where it was held there was no error in the judgment below. See same case
"To R. B. Peebles, Esq., attorney for N. Peebles: Sir, — You are hereby notified that as attorney for the plaintiff, Samuel Calvert, in the above entitled action, we shall move before His Honor A. C. Avery, judge of the superior court, at chambers in Tarboro, Edgecombe county, on Tuesday the 22nd of October, 1879, at eight o'clock p.m., to conform the judgment heretofore rendered at spring term, 1878, of Northampton superior court, to the judgment and opinion of the supreme court in this case; to reform and amend the said judgment of spring term, 1878, in accordance with the records in said suit, and in the original suit in which the recovery was had against the defendant above named, and the plaintiff and others, as sureties, upon which judgment in the last mentioned suit the money was recovered out of this plaintiff as surety, which he has in the present action recovered against the defendant, the guardian, N. Peebles, so as to enable the plaintiff to enforce said judgment of spring term, 1878, against the property of the defendant, N. *336 Peebles, so far as the said records and pleadings and said opinion and judgment of the supreme court shall authorize; showing, first, that plaintiff is entitled to the same without regard to the homestead of defendant; and secondly, this notice is in renewal of a motion made before Judge Avery for the same purpose at fall term, 1879, of Northampton superior court, and not then acted on by the court by reason of objections then made by you for want of notice." Signed by plaintiffs' attorneys.
Upon the return of this notice executed on R. B. Peebles, the defendant's attorney, there being no answer filed, on motion it was adjudged by the court at fall term, 1879, first, that plaintiff recover of defendant the sum of $11,448.30, of which $8,601 84 is principal money, with interest from the 20th of May, 1878, being the sum for which Judge Seymour rendered judgment in this case at spring term, 1878, of said court, and for costs; secondly, it is further adjudged that plaintiff herein is subrogated to the rights of the plaintiff in a judgment of the supreme court, rendered at June term, 1872, (
We cannot understand what is meant by the court below, in professing to reform the judgment in that court, in accordance with the opinion of this court. In that opinion there was not the remotest intimation made that the plaintiff was entitled to be subrogated to the rights of the plaintiff in any action whatever, or that he was entitled to any lien on the property of the defendant, or that the defendant had no right to his homestead or personal property exemption. There is nothing in the opinion of this court from which even by the most liberal construction such inferences could be drawn. When this court announced by its decision that there was no error in the judgment of the court below, that court had no right or power to modify that judgment in any respect. It could only be done by direct proceeding alleging fraud, mistake, imposition, c.
The judgment from which this appeal is taken is not according to the course and practice of the courts. It was irregular, and should have been set aside upon the exceptions taken by defendant's counsel. There is error. Let this be certified to the superior court of Northampton county.
Error. Reversed. *339