Swain v. Bonner, 189 N.C. 185 (1925)

Feb. 18, 1925 · Supreme Court of North Carolina

189 N.C. 185

W. C. SWAIN v. W. S. BONNER and C. L. CARROW.

(Filed 18 February, 1925.)

1. Judgments — Verdict—Parties—Appeal and Error.

Where the verdict of the jury, in a suit properly constituted, and on evidence regularly presented, entitles the plaintiff to recover against two defendants in a certain amount, it is reversible error for the trial court to render judgment against only one of them in plaintiff’s favor.

2. Same — Courts—Jurisdiction—Justice of the Peace.

Where an action has been brought against two defendants before a justice of the peace having jurisdiction of the subject-matter, one of them •living within and the other without the county, it appearing of record they had both been served with summons, and both had appealed to the Superior Court: Held, they should both be bound by an adverse judgment.

Civil actioN, beard on appeal from a justice’s court at August Term, 1924, of Tyrrell, before Allen, J., and a jury.'

From a perusal of tbe record and case on appeal, it appears tbat plaintiff, making claim against tbe two defendants, instituted suit against them, returnable before W. L. Godwin, justice of tbe peace of said county, tbat summons was duly served on defendants, and on return day, defendants not appearing, evidence of plaintiff was duly presented and judgment rendered in bis favor against botb of defendants for $175.00. Defendants appealed, and on trial in Superior Court cause was submitted and verdict rendered, as follows :

“1. Are defendants indebted to plaintiff, and, if so, in wbat sum? Answer: ‘$212.50, less $125.’ ”

Judgment on verdict for plaintiff against defendant, W. S. Bonner. Plaintiff excepted and appealed, assigning for error tbat tbe judgment should bave been entered against botb of tbe defendants.

Thompson & Wilson for plaintiff.

No counsel for defendant.

Hoke, C. J.,

after stating tbe case: In Lawrence v. Beck, 185 N. C., pp. 196-200, it is said: “In tbis jurisdiction, and others basing'tbeir system of jurisprudence on tbe common-law principles, a judgment is but tbe conclusion that tbe law makes upon facts admitted or properly established in tbe course of a properly constituted suit; and when, in such proceedings, tbe ultimate facts have been so ascertained and declared, tbe correct judgment must follow and be entered thereon as of right.” Citing Beard v. Hall, 79 N. C., p. 506; Barnard v. Etheridge, 15 N. C., p. 295; 23 Cyc., p. 665.

Considering tbe record in view of tbis accepted principle, it appears tbat plaintiff, in a suit duly constituted, and on evidence regularly presented, established bis right of recovery against both defendants, and tbis result is fully affirmed by tbe jury verdict in tbe trial in tbe Superior Court, and there is nothing appearing in tbe cause to prevent tbe plaintiff from having bis judgment on tbe verdict against both defendants.

True, it appears tbat one of tbe defendants seems to have been resident in another county, but tbe summons was served on him in said county, and, so far as tbe facts of record now disclose, tbe suit is properly constituted. 1 C. S., 1488. Apart from tbis, tbe record states tbat both defendants appealed from tbe justice’s judgment and thereby submitted tbeir cause to tbe court’s jurisdiction.

Eor tbe error indicated, tbe cause is remanded, tbat judgment be entered for plaintiff against both defendants, as prayed.

Error.