25 N.C. 86 | N.C. | 1842
Carter T. Baughan was arrested by a constable at the suit of Wilkings and Belden, on a capias ad satisfaciendum, issued by a justice of the peace, and he entered into bond with John M. Jarrott and another (who is since dead), as his sureties, in the usual form, with condition for Baughan's appearance at the next County Court, to take the benefit of the act for the relief of insolvent debtors, as in the (87) act prescribed. In the County Court, his creditors suggested his fraudulent concealment of sundry articles and sums of money; issues were made up on the several suggestions; the jury found the fraud and concealment as alleged; and the Court gave the judgment, as prescribed in the act, that Baughan be in the custody of the Sheriff, and be imprisoned until a full and fair disclosure of his effects should be made by him. From that judgment he appealed to the Superior Court, and entered into bond with Neil Johnson and others as his sureties, with condition that "the said Baughan do well and truly prosecute his said appeal with effect, or, in case he shall have the cause decided against him, shall perform the judgment, sentence or decree, which the Superior Court shall make or pass therein." At November Term, 1837, the transcript was filed in the Superior Court, and the case was thence duly continued until November Term, 1839. Being then called, Baughan failed to appear, and his failure was recorded; *67 and, at the same time, on the motion of his attorney, and cause shown by the affidavit of his agent, the case was continued by order of the Court until the next Term, and it was thence again duly continued until May Term, 1841, when the issues were tried and the jury again found the fraud and concealment as before. Thereupon, Baughan was, upon the motion of the plaintiff, called, but he failed to appear; and, his default being recorded, the Court rendered judgment thereon, against him and Jarrott, on the bond returned by the constable, to be discharged by the payment of the debt and interest, and the costs in the County and Superior Courts. The creditors then further moved the Court for a like judgment against the principal and his sureties on the appeal bond, or, if the Court should think them not entitled to more, for a judgment for the costs in the Superior Court. To that motion it was objected, that as the plaintiffs had gone to trial on the issues, the only judgment it was then competent for the Court to pass was that the debtor be imprisoned; and that there could be no judgment on the appeal bond. Of that opinion was the Court, and refused the motion entirely; and the plaintiffs appealed. (88)
It appears to the Court that these creditors had a right to judgment on the appeal bond for their debt and costs, according to the motion in its largest form. The act, Rev. Stat., ch. 58, sec. 10, gives to either party, dissatisfied with the verdict, an appeal "as in other cases." This imports that when the debtor appeals, he shall give bond for the performance of the judgment against him in the Court above, and also imports a summary remedy on it by giving a judgment against the sureties for whatever may be recovered against their principal. Revised Statutes, ch. 4, secs. 1 and 10. But the reasoning on which his Honor proceeded is that this cannot apply to the case before us, because, after fraud found, the judgment is, that the debtor be imprisoned; which operates upon the person merely, and is not a judgment for a sum of money, for which there can also be a judgment against the sureties. But this construction of the act seems to the Court to be very erroneous. What may be the liabilities of the sureties for an appeal by the debtor, against whom issues are found, and against whom, being in Court, the judgment of imprisonment is pronounced, as directed by the 10th section, we are not now to say. Certainly they are not to stand imprisoned, like a debtor, until a disclosure be made by him. And it may be admitted, for the purposes of this case, that there is no redress against them in the case supposed. But that is a question essentially different from that which arises here; which is, what is the liability of the sureties, when the debtor is not in Court, but makes default? In that event the judgment of imprisonment cannot be rendered, or, at least, executed as designed by the law; and unless *68
there can be a judgment for the debt and costs against the principal, so as to found a judgment thereon against some or all of his sureties, it is obvious the creditor is defeated of his whole remedy, simply by the default of the debtor, which would seem most extraordinary. It is yielded by the reasoning on which his Honor's decision proceeds that the sureties for the appeal would have been liable for the debt and costs, if the debtor had made default before the issues were tried, (89) and the creditors had then taken their judgment for the default; for it is said, the creditors have confined themselves to the judgment against the debtor's person, by proceeding to the trial of the issues, and taking a verdict which authorized a personal judgment. Why would they have been thus liable? It can only be because, upon the failure of the debtor to appear, the creditors can take judgment for the debt and costs on the bond returned by the officer, and then a second judgment on the appeal bond, whereby the parties bound themselves that the debtor should perform the judgment the Superior Court might render against him. The same reasoning applies to the case of a default by the debtor at any time, and especially after the issues found against him. The debtor is bound to appear, whenever duly demanded by the creditor, until the final adjudication. Mooring v. James,
But, besides the reason stated in the record, others have been assigned in the argument here, why the motion should have been refused, which it is proper to notice. It was said, in the first place, upon the authority ofPage v. Winningham,
It was next said that there was a default of the debtor in November, 1839, and therefore that this motion could not be allowed in May, 1841, without a notice to the sureties. We see no reason why the creditor might not waive that default and proceed to a trial of (91) the issues, and then demand the debtor, and upon default then made, have judgment on the bonds. But, in truth, there was, we think, no default in 1839; for at that term, at which the debtor failed to appear, the case was continued by the Court, under the authority to do so, where the debtor has been prevented from attending Court by good cause, to be judged of by the Court. After that, it does not appear that he made default, until he was called after the verdict rendered, and, upon that then made this motion was grounded.
It was insisted, lastly, that the ca. sa. was defective, and did not authorize the arrest of Baughan; and, therefore, that the creditor ought to have no remedy or any security founded on it. We are not prepared to admit, that if the execution be invalid, the debtor could avail himself of it, after giving bond for his appearance, and, especially after joining in the issues tendered by the creditor. But if he could object that matter against rendering judgment against him on the bond for his appearance, yet it seems to be a clear answer to this, and indeed to the preceding *70 objection, that it is not competent to the sureties in the appeal bond to allege that the judgment against their principal is erroneous. There is a judgment in this case against Baughan and Jarrott for the debt and costs, from which there was no appeal. If there be error in that judgment, yet it is perfectly settled that while it remains in force it binds the sureties for the appeal as much as the principal. It fixes the sureties with the debt, and the only questions between them and the appellees are, whether there be a judgment against their principal, and whether he has performed it. If he has not, then judgment is to be rendered against them for the same money.
The judgment below must be reversed, and judgment entered here for the plaintiffs on the appeal bond for the debt and interest, and (92) the costs of the Superior and County Courts, as well as the costs in this Court.
PER CURIAM. Judgment accordingly.
Cited: Williams v. Floyd,