Snead v. Rhodes, 19 N.C. 386, 2 Dev. & Bat. 386 (1837)

June 1837 · Supreme Court of North Carolina

19 N.C. 386, 2 Dev. & Bat. 386

JOHN SNEAD v. JAMES RHODES, Adm’r of STEPHEN SMITH.

The return' of satisfaction to a fi. fa. issuing on a judgment, is conclusive ‘ upon a scire facias to revive such judgment; and the only way in which such return can he got rid of, is hy an application to the Court to amend it.

The cases of Pigat v. Davis, 3 Hawks, 25, and Governor v. Switty, 1 Dev. 153, approved.

The plaintiff sued out a scire facias, to revive a judgment, recovered by him in an action of debt, against Calvin R. Blackman, Stephen Smith, and John Barfield; on which the sheriff returned that he had made it known to the defendant, the administrator of said Smith, deceased, but could not find' Blackman or Barfield. The plaintiff then entered a nolle prosequi as to the two latter, and declared, against the present defendant alone, who pleaded nul iiel record, and payment.

On the trial of the latter issue before the jury, the defendant gave in evidence a receipt for the whole sum for which the judgment was given, executed by the plaintiff to Blackman, one of the original defendants, and expressed to be in satisfaction of the said judgment. The defendant also gave in evidence a transcript of the record of the original suit, and of the executions and proceedings had therein. It thereupon appeared that the plaintiff had sued out a writ of fieri facias, on the said judgment, bearing leste in April term, 1S28, and returnable to the following October term, and (the said Blackman being the sheriff-,) delivered the same to the coroner; and that the coroner returned thereon at the next term, that he had made the moneys as therein he was cpmmanded, and that the said debt and costs were satisfied; and annexed to his said return as a part thereof, a receipt from the plaintiff to him, the coroner, in full of all the money due on that execution.

The plaintiff", to sustain the issue on his part, then offered the testimony of Willis Hall, the said coroner; and he deposed that no money was in fact paid by the said Blackman, to the plaintiff or to himself, nor any paid by him to the plaintiff; but that Blackman as sheriff, then had in his hands an execution against one Collier, the agent of the plaintiff, at the instance of a third party, and agreed with the plaintiff, to pay for him thereon, a sum equal to the amount due on the execution, in favour of the plaintiff, in which Blackman was the principal debtor; and thereupon, Blackman and ■ the plaintiff exchanged receipts for those sums, and the plaintiff also acknowledged satisfaction on his execution in the hands of the witness, and directed him to return it satisfied; and he accordingly did so. To this evidence the defendant objected, but the Court admitted it, in explanation of the receipts. .

His Honor Judge Saunders, at Wayne, on the Spring Circuit of 1836, .instructed the jury, that in law, there was no payment of the judgment, and that the plaintiff was entitled to their verdict; which the jury gave; and from the judgment thereon, the defendant appealed.

In the argument, it seemed to be the object of both parties, to have the case determined upon the merits, and to get the opinion of the court, whether, upon all the facts, the defendant was in law discharged ? but it was suggested that, perhaps, the question could not be decided upon the plea of payment generally, as that made an issue upon the very fact, and the record was only evidence; but that the defendant ought to have pleaded the whole matter specially as being a satisfaction of record, and relied upon the record by way of estoppel. This being taken up by the plaintiff, and insisted on, the defendant then urged that there could be no judgment on this scire facias, but that the judgment of the Superior Court must be reversed, because-,, upon a judgment against three, there cannot be execution against one of them, unless the record show a sufficient reason for not proeeeding against the others. The parties, in order to bring back the case to the question which was intended to be made, and would decide it conclusively, then agreed to amend the record, first, by adding to the return of the sheriff on the scire facias, that Blackman and Barfield were dead;' and secondly, by framing the issue so as to make the defendant rely on the receipts of the plaintiff, and- the return of the coroner, by way of estoppel, as a satisfaction of record; to which the plaintiff then replied nul tiel record.

W. G. Stanly, and' Badger, for the defendant.

Devereux, and J. II. Bryan, for the plaintiff.

Ruffin, Chief Justice,

having stated1 the case as above, proceeded: — When the case was first presented, it occurred to us, that the defendant could avail himself of the satisfaction appearing of record, upon the plea of nu'l tiel record; as the scire facias, after stating the judgment, as by the record and proceedings thereoa remaining, &c. appears,” avers further, that “ said judgment still remains in full foree and effect, not reversed, satisfied or vacated.” But upon looking slightly into the books we find, it is not certain that the scire facias should contain this latter allegation. Com. Dig. Pleader, 2 W. 12; 1 Saund. 330, n. 4. And perhaps it is most proper, that the matter of discharge should be brought forward by direct averments on the part of the defendant. We have not thought it worth while to satisfy ourselves how the point is, because upon the pleadings as they now stand, the Court is of opinion that the judgment must be reversed, because the judgment is in law satisfied of record.

If the plaintiff had acknowledged satisfaction of record, the judgment would be thereby discharged. This is the same thing. Writs of execution when returned are, together with the returns, part of the record in this state. Pigot v. Davis, 3 Hawks, 25. The return of satisfaction by the sheriff, it was said in Governor v. Twitty, 1 Dev. Rep. 153, is conclusive; and while it stands, the plaintiff has no remedy against the defendant. The agreement of a sheriff, to return an execution satisfied, without receiving the money, does not bind the plaintiff. But his return that he has levied the money does; for after that, no other execution can issue until there is a further adjudication by the Court. Such adjudication cannot be given incidentally, in any other or the same Court, when a party is proceeding on the record; for it is conclusive of all things appearing in its present form, and cannot be explained or impeached collaterally upon evidence. The only manner in which the plaintiffcould get clear of it, is by a motion to amend the return of the coroner; which would be heard like a motion to vacate an acknowledgment of satisfaction of record by the party. Either, upon a proper case, may be allowed; though it is scarcely conceivable that in such a case as this, it would be against a surety and the coroner, where the creditor made a new contract with the principal debtor, and upon the strength of it, directed, in his own person, the return that was made. We have doubted whether all the facts taken together, did not amount to evidence of payment as first pleaded. But as the case is now made, the evidence of the coroner was improper; and we are clear that as stated in the defendant’s plea, the judgment' is satisfied, as by the record now remaining, &c. fully appears.

The judgment of the Superior Court must, therefore, be reversed, and the cause remanded for further proceedings ■in that Court.

PeR Ctjeiam. Judgment reversed.