Cline v. Cline, 209 N.C. 531 (1936)

Feb. 26, 1936 · Supreme Court of North Carolina

209 N.C. 531

CAMILLA CLINE v. P. L. CLINE, and C. L. CLINE v. P. L. CLINE.

(Filed 26 February, 1936.)

Judgments C b — Failure of clerk to endorse judgment on verified statements does not render his judgments by confession thereon invalid.

Where verified statements, sufficient in form and contents under the statute to confer jurisdiction on the clerk to render judgments by confession, are filed in the office of the clerk, and the clerk enters on his judgment docket the judgment which the debtor authorized the court to render on each statement, but fails to endorse the judgment of the court on the verified statements, such failure is an irregularity, but does not affect the validity of the judgments by confession, which the entries on the judgment docket show were rendered by the court, and such judgments are erroneously set aside upon motion thereafter made by a subsequent judgment creditor. C. S., 624, 625.

Devin, J., took no part in the consideration or decision of this case.

Appeal by Camilla Cline and C. L. Cline, respondents, from Sink, J., at July Term, 1935, of Catawba.

Reversed.

On 30 August, 1934, the United States Fidelity and Guaranty Company after due notice in writing to Camilla Cline and to C. L. Cline, appeared before Wade H. Lefler, clerk of the Superior Court of Catawba County, and moved in writing that certain entries appearing on pages 47 and 78, respectively, of Judgment Docket T, in his office, be stricken from said judgment docket, for the reason that, as alleged in said motion, said entries were inadvertently and erroneously made by tbe clerk of said court. Tbe movant is a judgment creditor of P. L. Cline, owning an unsatisfied judgment against him for tbe sum of $2,200, wbicb was duly docketed and indexed in tbe office of tbe clerk of tbe Superior Court of Catawba County on 1 June, 1931.

At tbe .bearing of said motions, an inspection of Judgment Docket T in tbe office of tbe clerk of tbe Superior Court of Catawba County, showed entries on pages 47 and 78, respectively, as follows:

“Confession of judgment rendered in favor of tbe plaintiff and against tbe defendant in tbe sum of $650.00 and costs.”

“Confession of judgment rendered March 17, 1931, for tbe sum of $575.00, and interest on same from March 15th, 1929.”

On pages 359 and 364, respectively, of tbe Minute Book in tbe office of tbe clerk of tbe Superior Court of Catawba County, are tbe following records:

“Confession of Jud&ment.

“North Carolina — Catawba County.

In tbe Superior Court, Before tbe Clerk.

“Camilla Cline vs. P. L. Cline.

“1. P. L. Cline, tbe defendant in tbe above entitled case, hereby confesses judgment in favor of Camilla Cline, plaintiff, for six hundred fifty dollars ($650.00), and authorizes tbe entry of judgment therefor against P. L. Cline on 27th day of January, 1931.

“2. Tbe confession of judgment is for debt or for a debt now justly due from P. B. Cline to tbe said plaintiff Camilla Cline, arising from tbe following facts:

“P. B. Cline borrowed from Camilla Cline $425.00 at one time to use towards tbe purchase price of an automobile, wbicb said car is tbe property of P. L. Cline, and certificate of title was issued in the name of Pi L. Cline. The remainder of the money I borrowed at another time for the personal use of P. L. Cline, and said money was used for the benefit of P. L. Cline, making a total of $650.00 borrowed from Camilla Cline. P. L. Cline really owes interest on this amount of $650.00, but this judgment is not confessed for any interest, but only for the principal sum of $650.00. Of this amount of $650.00, $225.00 is in the form of a note, or balance on a note, made and executed by P. L. Cline to Camilla Cline several years ago, or during the year 1926, which said sum of $650.00 is due to said plaintiff Camilla Cline over and above all just demands that he has against Camilla Cline, the plaintiff. (Signed) P. L. Cline.

“P. L. Cline, being duly sworn, says that the facts stated in the above confession are true, and that the amount of the judgment confessed is justly due the plaintiff Camilla Cline. P. L. Cline.

“Subscribed and sworn to before me, this the 27th day of January, 1931. G. P. Drum,

Deputy Cleric of Superior Court.”

“Confession of Judgment.

“North Carolina — Catawba County.

In the Superior Court, Before the Clerk.

“O. L. Cline vs. P. L. Cline.

“1. P. L. Cline, the defendant in the above entitled case, hereby confesses judgment in favor of C. L. Cline, plaintiff, for five hundred seventy-five dollars ($575.00), and interest, since March 15th, 1929, and authorizes the entry of judgment therefor against P. L. Cline, defendant, on the 17th day of March, 1931.

“2. The confession of judgment is for a debt now justly due from P. L. Cline to the said C. L. Cline, plaintiff, arising from the following facts:

“On March 15, 1928, P. L. Cline executed and delivered to C. L. Cline his promissory note in the sum of $575.00, with interest at the rate of six per cent, and the note was due one day after date. On the back side of said note is credited interest for one year, or the sum of $34.50, and there remains unpaid the principal and interest since March 15, 1929. This note was executed for money received from C. L. Cline, every dollar cash, which said sum of $575.00, and interest since March 15, 1929, is due to the said plaintiff over and above all just demands that P. L. Cline has against C. L. Cline. (Signed) P. L. Cline.

“P. L. Cline, being duly sworn, says that the facts set out or stated in the aboye confession are true, and that the amount of the judgment confessed is justly due the said C. L. Cline, the plaintiff.

P. L. Cline.

“Sworn to and subscribed before me, this the 17th day of March, 1931.

R. M. Yount, Cleric of Superior Court.”

The minute book in the office of the clerk of the Superior Court of Catawba County does not show a record of any judgment rendered by the clerk of said court on either of the verified statements filed in said court by P. L. Cline, nor is a judgment endorsed on either of the said verified statements by said clerk. The only record of a judgment by confession on either of said statements is the entry on Judgment Docket T.

After hearing the motion in each of the above entitled causes, the clerk found that no judgment was endorsed on the verified statements filed in each of said causes, or otherwise rendered, and that the entries appearing on pages 47 and 78, respectively, of Judgment Docket T, in his office, were inadvertently and erroneously made by his predecessor, and thereupon ordered that said entries be stricken from said judgment docket.

Prom these orders the respondents, Camilla Cline and C. L. Cline, appealed to the judge of the Superior Court of Catawba County.

At the hearing of these appeals, judgment was rendered as follows:

“The causes entitled as above, coming on to be heard on appeal from the clerk of the Superior Court of Catawba County, and being consolidated by consent for the purpose of the further hearing of the same, and it appearing that the movant, the United States Fidelity and Guaranty Company is a proper party to prosecute the petition and motion, and it further appearing, and the court so holding, that no judgment was rendered in either of said causes, it is, on motion of C. W. Bagby and ~W. A. Self, counsel for petitioner and movant, considered and adjudged that the judgment of the clerk appealed from in each cause be and the same is affirmed. H. Hoyle Sink,

“July Term, 1935. Judge Presiding.”

The respondents excepted to the judgment and appealed to the Supreme Court, assigning error in the judgment.

W. A. Self, Chas. W. Bagby, and C. D. Swift for movant.

C. D. Moss and Jonas & Jonas for respondents.

Connor, J.

The statements in writing, signed and duly verified by tbe debtor, P. L. Cline, and filed by him with the clerk of tbe Superior Court of Catawba County — one on 27 January, 1931, and tbe other on 17 March, 1931 — are in full compliance with tbe requirements of tbe statute, C. S., 624, and therefore were sufficient, both as to form and as to contents, to confer jurisdiction on tbe court of the parties and of the subject matter of tbe proceeding.

Speaking of tbe statutory requirements for a proceeding for tbe entry of a judgment by confession, in Smith v. Smith, 117 N. C., 348, 23 S. E., 270, Clark, J., says: “If tbe statutory requirements are not complied with, tbe judgment is irregular and void, because of a want of jurisdiction in tbe court to render judgment, which is apparent on tbe face of tbe proceedings. Davidson v. Alexander, 84 N. C., 621; Davenport v. Leary, 95 N. C., 205.” E converso, where tbe statutory requirements with respect to tbe form and contents of the statement have been fully complied with, as in tbe instant case, tbe court acquires jurisdiction, and a judgment by confession, as authorized by tbe debtor in tbe statement, is valid for all purposes.

Tbe only question presented on tbe record in tbis appeal is whether a judgment was rendered by tbe court on each of tbe statements filed with tbe clerk by tbe debtor. Tbis question must be answered in tbe affirmative.

The statute, O. S., 625, provides that where a statement, setting out tbe amount of bis debt, and tbe facts out of which bis debt arose, has been signed and duly verified by tbe debtor, and has been filed with tbe clerk of tbe Superior Court of tbe county in which tbe debtor resides, tbe clerk shall endorse upon tbe statement tbe judgment of tbe court, and shall enter said judgment on bis judgment docket. In the instant case, tbe clerk entered tbe judgment which tbe debtor authorized tbe court to render on each statement, on bis judgment docket. He failed to endorse tbe judgment on tbe verified statement. Tbis failure was an irregularity which does not affect tbe validity of tbe judgment, which tbe entry on tbe judgment docket made by tbe clerk, or under bis immediate supervision, shows was rendered by tbe court.

There is error in tbe order affirming tbe orders of tbe clerk. Tbe motions of tbe movant should have been denied.

Eeversed.

Devin, J., took no part in tbe consideration or decision of tbis case.