Moore v. . Nowell

Feb 5, 1886
Versions:94 N.C. 265
*270 MerrimoN, J.

Judgments whether they be granted by a justice of the peace, or a court of record, are assignable either in writing or by merely verbal transfer, so as to pass the equitable title to them to the purchaser. Winberry v. Koonce, 83 N. C., 351.

The judgments mentioned and described in the complaint, were assigned to the plaintiff in writing, for value, and he became the complete equitable owner of them, and the “ real party in interest.” The person in whose name they were taken, has only the naked legal title to them, and he holds that for the plaintiff.

It is insisted, however, that the statute, (The Code, §177,) provides that, “Every action must be prosecuted in the name of the real j tarty in interest, except as otherwise provided, but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract,” and that the judgments are things in action not arising “out of contract.”

We cannot concur in this view. Judgments are, it is true, not ordinarily and always and for all purposes treated as contracts, as was decided, in McDonald v. Dickson, 87 N. C., 404 ; but in the sense of distinguishing them from causes of action, arising ex delicto, they are contracts, and are classed in the law as contracts of record, and of the highest dignity. They possess the quality of engagement, by implication and force of the law, on the part of the judgment debtor, to pay the sum of money adjudged to be due the judgment creditor. It is said, that contracts or obligations ex contractu are of three descriptions, and they may bé classed, with reference to their respective orders or degrees of superiority, as follows: 1. Contracts of Record; 2. Specialties ; 3. Simple contracts.

Contract of Records consist of judgments, recognizances, &c. Chitty on Cont. 3. See also the dissenting opinion of Justice RuNKIN, in McDonald v. Dickson, supra.

The term “contract,” as employed in the statute just cited, is used in its broadest legal sense — in a fundamental sense — and *271 implies and embraces all things in action, that have the nature or legal quality of a contract as defined by the law. It is employed in a leading and distinguishing sense, in the formation of a system of procedure.

Therefore, the judgments sued upon in this action, do arise out of contract, and the plaintiff, as assignee, may maintain an action upon them in his own name.

The appellant further insists, that as the judgments sued upon, are severally for a less sum than $200, the Superior Court has not original jurisdiction of them.

This objection is nottenable. The Constitution, Art. IV, §27, provides among other things, that, “ The several Justices of the Peace, shall have jurisdiction, under such regulations as the General Assembly shall prescribe, of all actions founded on contract, wherein the sum demanded shall not exceed two hundred dollars,” &c., and the statute, (The Code §834,) provides that “ Justices of the Peace shall have exclusive original jurisdiction of all civil actions founded on contract except: 1. Wherein the sum demanded, exclusive of interest, exceeds two hundred dollars” &c.

It will be observed that it is the sum demanded that fixes the jurisdiction, and it has been held that this implies the sum demanded in good faith. Froelich v. Express Co., 67 N. C., 1; Wiseman v. Witherow, 90 N. C., 140. The phrase “.sum demanded,” implies the whole sum due to the plaintiff or plaintiffs, from the defendant or defendants in the action, for the same like and kindred accounts in nature, as if the whole sum demanded is $600, $100 of it due by open account, $200 by promissory note, and $300 by judgment. All these sums may be consolidated, and sued for in the same action, and thus consolidated, they would constitute the plaintiff’s “sum demanded.” And so also, if the sum demanded on each account, is less than $200, but in the aggregate more than that sum, they may be sued for as a single demand in the Superior Court, and it would have jurisdiction. There is no statute that forbids this in terms *272 or by reasonable implication, and we can see no just reason why it may not be done. Such practice would be convenient and economize cost and time in many cases. It was the common practice in this State, before the adoption of the present method of procedure, to consolidate two or more debts due the same plaintiff from the same defendant, each within the jurisdiction of a justice of the peace, and thus give the County or Superior Courts jurisdiction. We see no reason why the same practice may not now prevail. Indeed it has been held, in at least one case, that it may. Sutton v. McMillan, 72 N. C., 102.

The plaintiff is not, in such cases, obliged to sue in the same action for each sum so due to him, but he may do so. If, however, he should multiply actions in the same count for distinct sums of money so due him, on similar accounts, the Court might and would, no reasonable objection appearing, direct such actions to be consolidated. This ought to be done on the score of economy of time and cost, and to prevent vexatious litigation.

The plaintiff’s demand is not very formally stated, but the Court can certainly see what it is, and what the several particular demauds are, that constitute the whole. The defendant had such information as would enable him to make any defence he might have. This is sufficient, although it would have been better to make each allegation separate and formal. Perhaps the Court would have entertained and allowed a motion, made in apt time, to require the plaintiff to make his allegations severally, and more formal.

The appellant further contends that the appellee has united several distinct causes of action in his complaint, and demands different judgments against several defendants.

We think otherwise. The three judgments sued upon, were granted by a justice of the peace, in favor of the same plaintiff against the same defendants, and they were duly docketed in the Superior Court. The plaintiff in each of them, for value, sold and assigned them in writing to the present plaintiff. One of the judgment debtors died intestate, before the action was brought,' *273 and an administratrix of his estate was appointed. The plaintiff brought this action against all the surviving'judgment debtors, joining with them the administratrix, and the heirs at law of the intestate, and 'demanded judgment against the administratrix for the amount of the judgments mentioned, and that she .sell the land of her intestate, and out of the proceeds pay the plaintiff’s debts, and that execution issue against the other judgment debtor defendants. This demand for judgment was not a proper one, or one warranted by the complaint. Nor were the heirs-at-law necessary or proper parties, and no judgment could be given against them. But they were simply unnecessary parties, and being such, this could not defeat the plaintiff’s action, nor was it ground for demurrer. The failure to demand a proper judgment, did not operate to defeat the plaintiff’s action. The allegations of the complaint, notwithstanding immaterial and redundant matter, and unnecessary parties defendant, plainly indicated the proper judgment, and the Court, seeing this, could grant it, without regard to an inappropriate demand for judgment; or in the absence of any formal demand in that respect. It was the duty of the Court to give such judgment as the law allowed, in the case presented by the pleadings. Dunn v. Barnes, 73 N. C., 273; Knight v. Houghtalling, 85 N. C., 17 ; Jones v. Mial, 79 N. C., 164; Jones v. Mial, 82 N. C., 252.

The Court overruled the demurrer and gave judgment against the appellant. It does not appear affirmatively that it held that the demurrer was frivolous and therefore gave judgment. The counsel insisted here, that the Court ought to have given judgment that the appellant answer the complaint, unless it had first decided that the demurrer was frivolous.

There is no exception in the record raising any question in that respect, and it must be taken here, that the judgment was a proper one, and hence no exception was taken in the Court below. It is too late to raise the objection here. The judgment must be affirmed.

No error. Affirmed.