8 S.E.2d 243 | N.C. | 1940
Plaintiff instituted the action to recover possession of certain personal property conveyed by mortgage to the plaintiff. A writ of claim and delivery was issued and the defendants filed a replevin bond. The name of C. D. Heath appears thereon as surety.
The cause was referred and upon the report of the referee at the October Term, 1939, the judge proceeded to hear the exceptions to the referee's report. During the hearing, Heath, having been advised that his name appeared upon the replevin bond as a surety for the defendant, filed a motion that his name be stricken from the defendant's undertaking, which motion was supported by an affidavit that he never signed or authorized the signing of said bond.
The said Heath, by consent, was permitted to file the motion in the cause pending the hearing and the court suspended proceedings upon the referee's report to submit to a jury the issue raised by the motion. After hearing the evidence and the charge of the court the jury answered the issue submitted finding that Heath did not sign the bond.
After the rendition of the verdict, the court, in the exercise of its discretion, set the verdict aside and, upon the completion of the hearing upon the referee's report, rendered judgment against the defendants and the said Heath. Heath excepted and appealed.
The plaintiff is entitled to a judgment against the sureties on the defendant's undertaking according to the terms of the instrument, to be recovered in the original action. The sureties, within the limits of their obligation, are considered parties of record, and the defendants their principals. McDonald v. McBryde,
Ordinarily, the sureties are not prejudiced until judgment is rendered. Except in case of fraud, Wallace v. Robinson, supra, a surety upon a replevin bond may challenge his liability for that he did not in fact sign the bond, or for other cause, by motion in the original action. Long v.Meares, supra; Nimocks v. Pope,
The movant was permitted to appear in the original action and to file a motion to strike his name from the replevin bond for the reason he never signed or authorized the signing of the same prior to judgment. The issue raised by the motion was submitted to a jury upon the evidence offered and was answered in his favor. The court, as it had a right to do, set the verdict aside. But in so doing it did not order a new trial on the issue. Instead, it proceeded to judgment not only against the principals but against the appellant as well. This was done notwithstanding the fact that the issue raised by the motion was still pending and undetermined.
The movant is liable upon the judgment rendered only in the event that he signed the replevin bond or authorized someone else so to do in his name, place and stead. He has raised, by proper procedure, an issue as to his liability upon the judgment rendered. The court was without authority to hear and determine the facts in respect thereto. Even if it be conceded that the motion was prematurely made judgment has now been entered and the court adjudged his liability while his motion was pending. A substantial right is thereby affected and if the judgment is affirmed as against him, upon the present record, he may be precluded hereafter from litigating the question presented.
The appellant is entitled to his day in court and upon the issue raised he is entitled to a trial by jury. If it shall be determined that he in fact signed the bond, then the plaintiff is entitled to judgment against him as against the principals. Under the circumstances presented on this record we are of the opinion that his appeal from the judgment to which he duly excepted is not premature.
As to C. D. Heath, on the question of his suretyship upon the bond, there must be a
New trial.
