33 N.C. 182 | N.C. | 1850
Lead Opinion
The plaintiff warranted four defendants, Muse, Spivey, McNeill and McDonald, on a former judgment for $40, and on 1 January, 1837, judgment was rendered against the four for debt, interest and costs. The justice then made this entry: "The defendant Jesse F. Muse, no other defendant in the case being present, prays an appeal, and it is granted, by giving for surety one William D. Harrington." In the County Court several pleas were put in generally for the defendants, (183) and the cause pended until July, 1847, when Spivey came into court and declared that the appeal had been taken *140
and prosecuted without his consent or knowledge, and moved to dismiss the same. The court refused the motion; and then the plaintiff moved to dismiss the appeal. But the court refused that motion, also, and the plaintiff appealed. The Superior Court at the next term refused to take cognizance of the plaintiff's appeal, and dismissed it, and remanded the case with a writ of procedendo to the County Court. At July Term, 1849, the plaintiff again moved the County Court to dismiss the appeal from the judgment of the justice of the peace, upon the ground that it was a joint judgment against four defendants, and one of them only appealed; which motion was overruled, and the plaintiff appealed. At February Term, 1850, the Superior Court reversed the last decision of the County Court, and allowed the motion of the plaintiff to dismiss the appeal, upon the ground stated by the plaintiff, and thereupon the defendant Muse, by consent, was allowed to appeal to this Court.
The decision of his Honor, from which this appeal was taken, is in conformity with the judgments then recently given by this Court in the case of Smith v. Cunningham,
It must, therefore, be certified to the Superior Court that there is no error in the order of that court from which the appeal was taken to this Court; so that the Superior Court may remit the case to the County Court, with directions to dismiss the appeal to that court from the judgment of the justice of the peace, to the end that the plaintiff may have execution of the judgment given by the justice of the peace.
Addendum
This case presents the question, Is a judgment against two or more joint? or is it joint and several, and to be treated in its consequences as if the defendants had been severally sued?
The decision of Trice v. Turrentine,
This case made it necessary to review that opinion. I have performed the duty most anxiously, and the result is a clear conviction of its correctness.
My position is that the statutes referred to changed the law and introduced a new principle; that this new principle has been acted upon by the Legislature and has been adopted by this Court, in two cases, which have never been drawn in question, and which directly conflict with the class of cases adhering to the old principle; and that to relieve ourselves of the confusion in which we are now involved, and the great confusion to *144 which we will be exposed in future, it is necessary to adopt the one principle or the other by overruling the cases which adhere to the old principle or the cases which adopt the new principle. If this necessity exists, no one will contend that the new principle should give way to the old one, with all of its absurd consequences.
The old principle is that all of the defendants are "a unit" and make but one, or, as it is elsewhere expressed, "though they are several persons, yet they make but one defendant, when jointly sued." 6 T. R., 525.
As a consequence of this principle, all of the defendants must join in an appeal, and the plaintiff, to fix the bail of one, (189) must first run a ca. sa. against all. Now, by the cases of Trice v. Turrentine,
At all events, this is a favorable occasion to assail the old principle, and I now proceed to sustain my position. By the old principle, if, pending a suit before judgment, one of the defendants died, his executor or administrator could not have been made liable, although he was the only solvent defendant. The act of 1797 provides that, in such case, such process *145 (190) and judgment may be awarded against the executor or administrator of the deceased defendant as if he had been "sued severally." Here the new principle is announced, and is applied to one case, so as to relieve against a hardship of the old principle, and the question is, Shall this new principle, by a liberal construction of these remedial statutes, be extended to all cases coming within the same mischief, so as to relieve against all the hardships? or are we to "stick to the letter" and confine the relief to the cases expressly provided for?
The Legislature has acted upon the new principle. The act of 1820 provides that if more suits than one be instituted against several obligors, the suits, on the return of the writs, shall be consolidated. Now, the lawmakers must have supposed that the old principle and its consequences had been abolished, and that the new principle, by which the defendants are to be treated as if "severally sued," was in force, or else they intended manifest wrong; for, by the old principle, the plaintiff could not proceed against the bail of each, as he could have done if his suits had been let alone; and if one of the defendants had died afterjudgment, the plaintiff had no remedy against his representative; and, on the other hand, the defendants, after the consolidation, must all join in an appeal; whereas, if the suits had been let alone, each defendant had the right to appeal; and upon the supposition that the old principle was in force, all these hardships were imposed upon the parties by a wise Legislature to save a little cost.
Again, the act of 1844 provides that no ca. sa. shall issue unless the plaintiff makes oath that the defendant conceals his property. This shows conclusively that in the opinion of the Legislature the defendants are to be treated as if they had been "severally sued", for if the defendants are "a unity," a fraudulent debtor must go free, if he has an honest codefendant, as to whom the oath cannot be made. It is a condition precedent, and no officer would be justified in issuing a ca. sa. (191) against both upon an oath as to one.
In Jones v. Ross,
So in Smith v. Fagan,
The old principle is adhered to in only one class of cases, Hicks v.Gilliam,
The new principle is adopted in two cases which have never been questioned. The old principle is adhered to in one class of cases, seven in all, but the authority of these cases (as they all stand upon the same ground) is weakened by the formidable array of numbers. The new principle adopted in Jones v. Ross and Fagan v. Smith was so much in accordance with the sense of the profession and the common idea of justice that these cases have never since been questioned, while the old principle, which is acted on in Hicks v. Gilliam, supra, was so much at variance with the sense of the profession and led to such hardships that it was not only questioned, but sent up to this Court, sometimes under one aspect and sometimes under another, and the present is the eighth time that this Court has been appealed to for relief. The struggles of the profession and of the public against the old principle have been like the convulsive efforts of a strong man seeking to relieve himself from a weight with which he is oppressed.
That these two sets of cases cannot stand together is self-evident. *147
The one adheres to the old principle, that the defendants are a "unit"; the other adopts the new principle, that the defendants, although sued together, are to be treated and have the same rights as if "severally sued." That confusion will grow out of contradictory decisions based upon these inconsistent principles, and that there is a necessity to adopt the one and reject the other, is painfully exhibited by the cases of Tricev. Turrentine and Waugh v. Hampton, overruled by Tricev. Turrentine and Jackson v. Hampton, and the case of (193)Brown v. Conner,
I should not feel at liberty to insist upon overruling the cases ofHicks v. Gilliam, and the other cases which follow it, but for the fact of their being directly opposed to the two acts of the Legislature and the two cases to which I have referred, and to which must now be added Brown v.Conner. This, I think, not only justifies, but makes it necessary to overrule them.
No one can read the case of Brown v. Conner,
The defendants are a "unit" and must join in an appeal. After they join in an appeal they cease to be a unit, and the plaintiff is entitled to judgment against one, although he shows no cause of action against the other. Is it right to (194) let this state of things continue?
I am not in favor of judicial legislation. Where new combinations of circumstances and changes in the state of society develop defects in the law, it is the province of the Legislature *148 to remedy these defects. But where a defect is occasioned by a train of decisions, all involving the same error, it is the duty of the Court to remedy this defect, because it is the consequence of its own wrong action, and it should correct its own error, and should not continue in error until "confusion becomes worse confounded," in the hope that the Legislature will extend its omnipotent arm and help the Court out of a difficulty of its own creation.
The Court not only has power to correct its own error, but it is most proper that it should do so; for, knowing the source and extent of the error, it can best apply the remedy; whereas, the Legislature, not knowing the case "in all of its bearings," may handle the subject too roughly, and while applying the remedy to one evil, may affect injuriously important principles in other parts of the system.
PER CURIAM. Judgment affirmed.
(195)