Hooks v. Moses, 30 N.C. 88, 8 Ired. 88 (1847)

Dec. 1847 · Supreme Court of North Carolina

30 N.C. 88, 8 Ired. 88

FRANKLIN H. HOOKS vs. AARON F. MOSES.

Where on a warrant against an administrator for debt, the magistrate before whom it was returned,made the following entry, “Judgment confessed to the officer by the administrator for the sum of, &e. April 24, 1845.” Signed by the magistrate. Held, that this was a valid judgment against the administrator.

One, against whom a judgment before a magistrate has been obtained, cannot attack that judgment collaterally, on the ground that he was not duly served with process, or notified of the day and plaee of trial. But to avail himself of these objections, the defendant must impeach the judgment directly by application to the magistrate or to a higher tribunal to set it aside or to reverse it.

in this case, in an action upon the judgment, the defendant cannot plead pleno adminisiravit, being fixed with assets by the judgment.

The cases of Skinner v. Moore, 2 Dev. & Bat. 152, and Burke r. Elliott, 4 Ired. 35C, cited and approved.

Appeal from the Superior Court of Law of Wayne County, at the Fall Term, 1547, his Honor Judge Manly presiding.

The plaintiff issued a warrant in debt on a note against the defendant as the administrator of John J. Briggs, deceased. It was returned by the constable,- “ Executed and the Justice of the Peace made thereon the following entry; “Jugment confessed to the officer by the administrator, Aaron- F. Moses, for the sum of fifteen dollars with interest from the first day of January, 1843, and costs. April 24, I84.5-. Signed, “L. Cogdell, J P.” On the same paper the magistrate made further entry: “Execute the goods and chattels of the deceased, and sell to satisfy the above judgment and costs. April 24, IS45.” Signed, “ L. Cogdell, J. P.”

The constable returned thereon nulla bona. On the 10th of June, 1847, the plaintiff brought the present writ by warrant in debt on the above, as a judgment, suggesting a devastavit, and seeking to recover from the defendant de bonis propriis ; and, after’ a judgment for the plaintiff, out of Court and appeals, the case came on to be tried in the Superior Court, on the plea of nil debet, that there was no such judgment; and fully administered.

For the defendant it was insisted, that the entry on the original warrant of the 24th of April, 1845, was not a judgment by the magistrate, but simply a memorandum of a conversation between him and the officer and nothing-more : And, secondly, that, if to be considered a judgment, it was not valid against the defendant, because he was not summoned to appear for trial at any particular time or place. The first point the Court reserved by consent of the parties. On the other, the defendant offered the constable, who returned the warrant, as a witness; and he deposed, that he did not give the defendant notice of the time and place of trial; but that the reason was, that, when he served the warrant, the defendant told him, he did not wish to attend the trial, and was willing a judgment should be rendered against him. Upon this evidence the Court directed the jury to find the issues for the plaintiff; which was done. But the Court, being af< terwards of opinion for the defendant on the point reserved, set aside the verdict, and ordered a nonsuit, under the agreement, and the plaintiff appealed.

Mordecai, for the plaintiff.

Rusted, for the defendant.

RuffiN, C. J.

The Court does not concur with the opinions given by his Honor. The proceedings before single magistrates are generally informal, and the Legi latur® requires, that they shall be favourably considered, if they can be seen to be substantially sufficient. It seems to be straining this entry most unreasonably, when it is read as nothing more than a memorandum of a conversation between the magistrate and the constable. To what end would a memorial be made of such a conversation ? Would the Justice have thought of issuing an execution on if? Or can we understand the Justice to have supposed, that the constable could take a confession of judgment, to be entered by the magistrate afterwards ? Is it not, rather, to be understood, that the Justice meant to say, that he did not give a judgment by default, but that the defendant confessed the debt to the constable, and that he, the magistrate, gave the judgment on the evidence of the Constable ? This last seems to the Court to be the fair and reasonable interpretation of what was done by the Justice. The entry was intended as a judgment by some one ; and whether the magistrate entered it as the judgment of himself, or of the constable, cannot be seriously doubted. The judgment must therefore be reversed, and judgment entered for the plaintiff upon the verdict.

What has been said is sufficient to dispose of the cause. Yet we think it incumbent on us to say farther, that the defendant ought not to have been allowed to attack the judgment on the other ground, that he was not duly served with process, or notified of the day and place of trial. Doubtless those are proper grounds for impeaching the judgment; but that must be done directly upon an application to the magistrate, or to a higher tribunal, to set it aside, or reverse it for that cause, and is not open to the party collaterally, when an execution is issued or debt brought on the judgment. Such is conclusively settled to be the law in respect of judgments of Courts of record. Skinner v. Moore, 2 Dev. & Bat. 152. Burke v. Elliott, 4 Ired, 358. It is true, that it was otherwise at common law in respect of the proceedings of inferior tribunals, not proceeding according to the course of the common law. But that has been altered here by the Rev. St. Ch. 31, Sec. 108 ; which, in re-enacting 11, 4 Hen. 4 C. 23, altered it by including judgments before a single magistrate having jurisdiction of the subject, and putting them on the same footing with those in a Court of record. It is implied then, until the judgment be set aside or reversed, that the magistrate found, that the warrant was not only executed, but duly executed by the appointment of some certain day and place of trial; and that judgment proves itself to be right and the matter cannot be enquired of incidentally.

It is to be further remarked, that the plaintiff is entitled to judgment notwithstanding the verdict is silent on the issue on the plea of plene administravit, for that plea was immaterial as the former judgment is conclusive of assets. Erving v. Peters, 3 T. R. 685. Act of 1828, Rev St. Ch. 46, Sec. 25.

Per Curiam. Judgment for plaintiff.