Thomas v. Holcombe, 29 N.C. 447, 7 Ired. 447 (1847)

Aug. 1847 · Supreme Court of North Carolina

29 N.C. 447, 7 Ired. 447

WILLIAM H. THOMAS vs. GEORGE W. HOLCOMBE.

Where a warrant is issued against three, and returned “executed,” and the judgment is against the “defendant” in the singular, and so also is the entry in the stay of execution, aud especially where the Justice, who rendered the judgment, was himself a party defendant, it cannot be determined by the Court against whom the judgment really was.

Appeal from the Superior Court of Law of Cherokee County, at the Spring Term, 1846, his Honor Judge Pearson presiding. '

This suit was commenced, June 7th, 1843, by warrant against the defendant, as the endorser of a note, made by Singleton Rhea to William Cunningham, for $45 60, and endorsed by Cunningham to the defendant and by the latter'to the plaintiff, Thomas. The plea was, former judgment, and in support of the issue, the-defendant produced a warrant, at the suit of the present plaintiff, issued against Singleton Rhea, William Cunningham, and the present defendant George W. Holcomb, in a plea of debt due by note for $45 10, which was returned “executed,’’ and on which judgment was entered . on the 5th day of August, 1841, by William Cunningham, a Justice of the Peace, in the following words. “Judgment against the defendant, by confession to the officer, for the sum of $45 10 principal and interest from the 14th of January, 1841, until paid, and forty cents costs.” And a stay of execution was entered also, in the following words, “Defendant prays stay of execution and gives for security A. J. Conner, this 12th of August, 1841,” which was signed by Conner and attested by William Cunningham as a Justice. The defendant then proved, that the note, on which this warrant is brought, is the same, as that mentioned in the warrant of August, 1841, and the William Cunningham, who gave the judgment of 1841, is the payer of the note and one of the persons mentioned as defendants in the warrant, on which he gave the judgment, as aforesaid; and the plaintiff thereupon insisted, that the same was not a valid judgment against the present defendant, and did not bar this suit. Of that opinion was the Court and so instructed the jury; and they having found accordingly and judgment being given for the plaintiff, the defendant appealed.

J. W. Woodfin, for the plaintiff.

Francis, for the defendant.

Ruffin, C. J.

It seems that the ground chiefly relied on, in the Superior Court, in support of the decision, was that the judgment was void, because it was rendered by a Magistrate, who was interested to have the judgment entered against the other parties and also was, himself, a party to the suit.

Although it is extremely reprehensible in a judicial officer to sit in a cause, to which he was a party, or in which he is interested, and we suppose that a judgment, given by a Justice of the Peace, on the side of his interest, may be reversed or quashed for that cause, yet the Court is not prepared without more consideration, than we can now bestow, to say, that it is so utterly void, that it may be so treated, immediately, by tSe plaintiff, who obtained it, and that as against other parties, than the magistrate himself. The point is not further examined, because the Court holds, on another plain ground,' that the judgment does not protect the defendant in this suit. That ground is, that it does not appear to be against him, and it is necessary that it should, in order to constitute a bar. It is true, the warrant was against the three, and it was returned “ executed,” yet it is not stated on whom it was executed, and the judgment is only “ against the defendant” in the singular number, without saying which defendant. So in the entry of the stay, the same phrase, “ defendant,” is used again. It is to be falten, by a plain implication, we think, that the magistrate was not giving judgment against himself, as he professes to act on an admission to the constable, proved, as we suppose, by that person. And moreover, he could not be so silly, as to suppose the stay good, that he would grant to himself. If he was not charging himself by the judgment, it is presumed he did not mean to render one against this defendant, who was his own assignee. It is extremely probable, therefore, that the “defendant” was Rhea, the maker of the note alone, especially as costs are given only for service on one person. But however that may be, we think, this defendant does not establish, that it was against himself; for the “defendant” either meant Rhea, or it is so vague, that it does not designate any one, in particular, and would, for that reason, be ineffectual. We think such a judgment against the “defendant,” upon a warrant against three persons, would not justify a sale of this defendant’s goods on an execution ; and that, as against him, it is a nullity.

Tur Curiam, •judgment affirmed;