Hood ex rel. People's Bank v. Wilson, 208 N.C. 120 (1935)

April 10, 1935 · Supreme Court of North Carolina

208 N.C. 120

GURNEY P. HOOD, Commissioner of Banks, ex Rel. THE PEOPLE’S BANK OF BURNSVILLE, N. C., v. J. N. WILSON, ROBERT PRESSNELL, Sheriff of Yancey County, and A. G. WILSON.

(Filed 10 April, 1935.)

1. Judgments G b — Consent judgment may be entered at any time by clerk of Superior Court in which the action is pending.

A consent judgment may be entered at any time by tbe clerk of the Superior Court in which the action is pending, O. S., 593, and it is not required that such judgment be entered on a Monday as is the case with other judgments which the clerk is authorized to enter. C. S., 597 (b).

2. Judgments H a — Consent judgments have priority in accordance with priority of docketing.

Plaintiff’s consent judgment was docketed 7 o’clock p.m., 6 December, and defendant judgment creditor’s consent .¡judgment against the same party was docketed 3 o’clock p.m., the same day, the judgments being docketed on a day other than a Monday, as authorized by statute. Held: The judgment of defendant judgment creditor has priority over plaintiff's judgment, 0. S., 614, since the provisions of 0. S., 613, that judgments rendered during a term should relate back to the first day thereof, and that the liens of all judgments rendered on the same Monday shall be of equal priority, do not apply to judgments by consent.

3. Execution E a: Receivers A a — Execution may not be enjoined nor' receiver appointed on ground that execution would not satisfy all judgment liens.

Allegations that because of prevailing financial conditions a sale of defendant judgment debtor’s lands under execution will not produce money sufficient to pay all judgments docketed against him; but that a sale under supervision of the court would probably produce sufficient money to pay all the judgments, are insufficient to state a cause of action upon which plaintiff judgment creditor is entitled to enjoin execution upon defendant judgment creditor’s prior docketed judgment, nor are such allegations sufficient to support the appointment of a receiver by the court for the property of the judgment debtor.

Appeal by tbe defendant J. N. Wilson from Warlich, J., at October Term, 1934, of Yancey.

Reversed.

Tbis is an action to enjoin tbe defendant Robert Pressnell, sheriff of Yancey County, from selling, and tbe defendant J. N. Wilson from causing tbe sale of tbe lands of tbe defendant A. G. Wilson, situate in Yancey County, under execution on a judgment in favor of tbe said J. N. Wilson and against tbe said A. G. Wilson; for tbe appointment of a receiver of tbe property of tbe defendant A. G. Wilson pending tbe trial of tbe action; and for other relief.

Tbe plaintiff is tbe owner of a judgment against tbe defendant A. G. Wilson, which was duly docketed in tbe office of tbe clerk of tbe Superior Court of Yancey County, at 1 o’clock p.m., on 6 December, 1933, and is by virtue of tbe statute (0. S., 614) a lien on tbe real property of tbe said A. G. Wilson, situate in Yancey County. Tbis judgment was rendered in an action brought by tbe plaintiff against A. G. Wilson in tbe Superior Court of Yancey County, and was entered by tbe clerk of said court by consent on Wednesday, 6 December, 1933.

Tbe plaintiff is also tbe owner of other judgments against A. G. Wilson, which were rendered and docketed subsequent to 6 December, 1933. These judgments are also liens on tbe real property of A. G. Wilson, situate in Yancey County.

Tbe defendant J. N. Wilson is tbe owner of a judgment against tbe defendant A. G. Wilson, which was docketed in tbe office of tbe clerk of tbe Superior Court of Yancey County, at 3 o’clock p.m., on 6 December, 1933, and is by virtue of tbe statute (0. S., 614) a lien on tbe real property of tbe said A. G. Wilson, situate in Yancey County. This judgment was rendered in an action brought by the said J. N. Wilson against the said A. G. Wilson in the Superior Court of Yancey County, and was entered by the clerk of said court, by consent, on Wednesday, 6 December, 1933.

On motion of the defendant J. N. Wilson, an execution was issued by the clerk of the Superior Court of Yancey County, on the judgment against A. G. Wilson, now owned by him, and at the commencement of this action the said execution was in the hands of the defendant Robert Pressnell, sheriff of Yancey County. The said defendant had caused the homestead of A. G. Wilson to be allotted and set apart to him, as required by law, and had advertised all the lands owned by the said A. G. Wilson, and situate in Yancey County, not included in his homestead, for sale on Monday, 1 October, 1934, under the execution in his hands.

It is alleged in the complaint, upon information and belief, that the defendant A. G. Wilson is now either insolvent or in grave danger of becoming insolvent, and that if his lands are now sold under execution, the proceeds of said sale will not be sufficient to pay the judgments docketed against him and the other claims of his creditors, but that if the said lands are sold under the supervision of the court, they will bring sufficient sums to pay off and discharge the said judgments and other claims against the said A. G. Wilson.

The action was heard in the Superior Court (1) on defendant’s demurrer ore temes to the complaint on the ground that the facts stated therein are not sufficient to constitute a cause of action;

(2) On defendants’ motion that the temporary restraining order issued in the action be dissolved; and,

(3) On plaintiff’s motion that a receiver of all the property of the defendant A. G. Wilson be appointed by the court pending the trial of the action.

At the hearing defendants’ demurrer ore terms to the complaint was overruled, and their motion that the temporary restraining order be dissolved was allowed.

The court was of opinion that the judgments of the plaintiff and of the defendant J. N. Wilson against the defendant A. G. Wilson, both of which are liens on the real property of the said A. G. Wilson, situate in Yancey County, are of equal dignity, and that the judgment of the defendant J. N. Wilson has no priority over the judgment of the plaintiff because the former judgment was docketed at 3 o’clock p.m. and the latter judgment was docketed at I o’clock p.m. on 6 December, 1933.

In accordance with this opinion, a receiver of all the property of the defendant A. G. Wilson was appointed by the court, pending the trial of the action.

Tbe defendant J. N. "Wilson appealed from tbe judgment, assigning as error (1) tbe overruling of tbe defendants’ demurrer ore terms; (2) tbe bolding of tbe court that bis judgment bad no priority over tbe judgment of tbe plaintiff; and (3) tbe appointment of a receiver of tbe property of tbe defendant A. G. Wilson pending tbe trial.

Watson <& Fouts for plaintiff.

J. G. Merrimon and A. Hall Johnston for defendant J. N. Wilson.

CONNOR, J.

Tbe facts alleged in tbe complaint in this action are not sufficient to constitute a cause of action on wbicb tbe plaintiff is entitled to relief. For that reason, there is error in tbe judgment overruling tbe demurrer to tbe complaint. Tbe demurrer should have been sustained and tbe action dismissed. On tbe facts alleged in tbe complaint, tbe plaintiff is not entitled to an injunction against tbe defendants, or either of them.

Roth tbe plaintiff and tbe defendant J. N. Wilson are judgment creditors of tbe defendant A. G. Wilson. Neither tbe validity of tbe defendant’s judgment nor tbe regularity of tbe execution issued on said judgments, and now in tbe bands of tbe defendant Robert Pressnell, sheriff of Yancey County, are challenged by tbe plaintiff. Both judgments were duly rendered by tbe Superior Court of Yancey County, and were duly docketed in tbe office of tbe clerk of said court, and are liens on tbe real property of tbe judgment debtor, in Yancey County. Tbe judgment of tbe defendant J. N. Wilson, having been first docketed, is a prior lien on said real property. C. S., 614.

It is provided by statute that a judgment by consent may be entered at any time by tbe clerk of tbe Superior Court in wbicb tbe action is pending. C. S., 593. Such judgment need not be entered on a Monday, as is the case with other judgments wbicb tbe clerk is authorized to enter. C. S., 597 (b). Tbe statute provides that “tbe liens of all judgments rendered on tbe same Monday shall be of equal priority, and each Monday shall be held and construed, in determining tbe priority of judgment liens, as a term of court, and tbe first day thereof.” See C. S., 613. This provision does not apply to judgments by consent, wbicb were rendered, as authorized by statute, on a day other than a Monday. As to such judgments, in tbe absence of statutory provisions to tbe contrary, tbe rule, "qui prior est in tempore, prior est in jure,” applies. See Bates v. Hinsdale, 65 N. C., 424.

Tbe allegations in tbe complaint to tbe effect that because of financial conditions now prevailing throughout tbe country, a sale of tbe lands of tbe judgment debtor under an execution will not produce a sum of money sufficient to pay all tbe judgments docketed against him, but that a sale of said lands under the supervision of the court will probably produce such sum, although admitted by the demurrer, are not sufficient to constitute a cause of action on which the plaintiff is entitled to the injunction prayed for by the plaintiff. See Bolich v. Ins. Co., 202 N. C., 789, 164 S. E., 335. Nor are such allegations sufficient to support the appointment by the court of a receiver of the property of the judgment debtor.

As there is error in the judgment overruling the demurrer to the complaint, the judgment must be reversed, and the action dismissed. It is so ordered.

Reversed.