Wood v. Bagley, 34 N.C. 83, 12 Ired. 83 (1851)

June 1851 · Supreme Court of North Carolina

34 N.C. 83, 12 Ired. 83

JOHN S. WOOD & AL. vs. WILLIS H. BAGLEY & AL.

If, at the time a judgment is obtained, the parties agree, that an execution* shall not issue for a certain time, which is duly entered of record, the time, within which a plaintiff can take out his execution, is extended to twelve* months and a day from the termination of tlie specified time, and nooxecu*. lion can regularly issue in the meantime,, except by order of the Oourt.

When a judgment is confessed upon terms, which are duly entered, it is, .in effect, a conditional j udgment, and the- Court will take notice of the terms and enforce them.

Where a rule or order is entered on the record, by a proper officer of the Court in the clerk’s office, hut during Term time, andithe Court meets and sit3 . afterwards, the conclusion oflaw is, that it was recognized and adopted by the Court.

The case of Go&y v Quinn, & Ire. 192y cited and approved:

Appeal from the Superior Court of Law of' Perquimans. County, at the.Spring Term 1851, his. Honor Judge Dick. presiding.

' This was a rule on the defendant obtained by the plaintiff, after due notice given him, at May Term, 1850, of the ■ County Court of Perquimans county, to show cause why an execution of fieri facias, which be had caused to be issued on a judgment recovered by him against the plaintiff, John S. Wood, at the preceding Term of the Court, should not be set aside. The rule having been made absolute in. the County Court, and the Court having ordered the said' execution to be set aside, the defendant appealed to the Superior Court.

Upon the hearing oí the case in this Court, the following Were the facts.

The defendant’s intestate, Miles Bail, recovered at February Term; 1850, of Perquimans County Court, against the plaintiff, John S. Wood, judgment for the sum of-dollars, with costs oí suit, and caused an execution, tested oí that Term, and returnable to the May Term, following, to be issued on the —— day of —--, against the property of the said Wood, and on the same day delivered to the sheriff, of Perquimans County aforesaid.' Subsequently, to February Term of Perquimans County Court-, aforesaid, to wit: at the Terms of the Superior Courts held in the counties of Perquimans and Pasquotank, respectively, in the month of April, of that year, the other persons who are plaintiffs, severally recovered judgments in those Courts against the said John S. Wood, on each of which executions of fieri facias were - issued shortly thereafter, to wit: on the-day of-of the same year, which were on the same day delivered to the sheriff of Perquimans, and were returnable to the Fall Term, 1850, of those Courts respectively.

Under these executions, and the execution of the defendant, Bagiey, which afterwards came into his hands, as stated, the sheriff made sale of the property of the said John Wood, and holds the proceeds of the sale in his hands unappropriated.

The judgments recovered by the several plaintiffs were by default on writs, of which the said Wood accepted service during the latter part of the week of the said Superior Courts.

Accompanying the judgment, as entered upon behalf of the said Dail against John S. Wood, and immediately underneath, appears the following entry on the docket, in that cause, to wit:

“ Stay execution till May Court, and thereafter till called for.”

It was in proof, that this entry was made on Thursday of the February Term aforesaid of the Court, in the office of the County Court Clerk, which is in the Court House, in the presence both of the said Dail, and the said Wood, by the County Court Clerk, under the direction, of the defendant Dail, and that no Court sat on that day or the next-day.

The circumstances, under which this entry was mad.e in the case, were as follows :

After judgment had been rendered in the case of Dail v Wood, the said John S. Wood called on the said Dail to know, if execution was. to be issued, and stated, that he did not wish to prejudice his debt, but it would not be convenient for him to pay it before May Term, and, perhaps, not before August Term of the Court. The said Dail suggested, that, under the advice of the Counsel, he preferred, that his execution should issue, but not be enforced. To this the said Wood answered, that that arrangement would not'suit him, and that he could appeal and keep it off longer; and thereupon, the said Dad, turning to the Clerk, instructed him to make the entry of the.stay, as already described ; and it was done. The execution, at the instance of Dail, was for Seventeen Hundred Dollars, or thereabouts. And the executions, in favor of the plaintiffs, other than Wood, amount ed to about Three Thousand Dollars, while the proceeds of sale of said Wood’s property, in the hands of the Sheriff, were about Four Thousand Dollars.

It further appeared, that, according to the practice and usages in the County Court of Perquimans, rules and other orders are taken and entered on the docket in the County Court Clerk’s office, at any time during the week, until Saturday when the Court adjourns and that the said Court did sit and transact business on Saturday of the February Term aforesaid, not having adjourned until that day.

The Court was of opinion, on the above statement of facts, that the entry on the docket was merely a private agreement between Dail and Wood, and not a record of the Court. It therefore ordered, that the judgment of the County Court be reversed and the rule discharged.

• From which .judgment, the plaintiffs appealed to the Supreme Court. ■ • ...

W. N. U. Smith, for the plaintiffs.

Heath, for the defendant, submitted the following argument.

. The entry on the docket is either a record, a contract, or a mere direction:

1st. On principle, it is not a record. A record is the process bringing the party into Court; the allegations of the parties ; the action of the Court thereon, and the final process. This entry is not a record nor a part of a record — is not leading process, adjudication, nor final process. The fact that it appears on the record does not make it a part of the record : An execution, when returned, is a part of the record; Pigot v Davis, 3 Hawks, 25. Yet the plaintiff’s receipt thereon, is no part of the record; Spruill v Bate-man, 4 Dev. and Bat., 489. On principle, then, particularly, as no Court was in session on the day, on which the entry was made, it is no part of the Record. Equally as little claim has it to be considered a record, on authority: Cody v Quinn, 6 Ire. 191, is a direct authority, that it is not a record. It is true, the learned Judge, who delivered the opinion, in Cody v Quinn, intimates, that the party interested might complain to the Court, “ in a motion to have the execution set aside.” This, however, is a mere obiter 'dictum, not necessary,to the decision of the cause, and may be questioned, however much the droppings even of his mind may be entitled to respect. And supposing the Court could exercise its discretion, it would'require a proper case, which this is not; as, by setting aside the execution in this case, the defendant would be defrauded of the money due on his execution, and perchance, might lose title to the property, bought under it.

2d. As a contract, it lacks the material ingredient of a consideration ; for the want of which it is believed, it could not be enforced, by suit even, much less by rule. If the waiving of the appeal, under the circumstances, could be construed into a consideration, the injury to Wood, ii any, is not such an one as calls for the interference of this Court by rule; but he should be left to his action at law. It is believed, however, it cannot be deemed a contract.

3d. If not a record nor a contract, then the entry is a mere direction, which the party giving had a right to countermand, and did countermand, and his execution issued rightfully.

4th. This entry being no part of the record, nor even a contract, which the Court could or ought to enforce by rule, it was, at the most, a mere matter of discretion with the Courts below, whether the execution should be set aside or not. The County Court having ordered the execution set aside, an appeal was properly taken to the Superior Court: the Superior Court having examined the testimony, and, in the exercise of its discretion, having reversed the decision of the County Court, no appeal lies therefrom: the cause is improperly in this Court, atid the appeal must be dismissed. That the appeal from the County to the Superior Court is rightful, and that the appeal to the Supreme Court is not, see Slade v Burton, Exrs. 6 Ire. 207, Britt v Patterson, 10 Ire. 390.

Nash. J.

The intestate recovered a judgment in the County Court of Perquimans against John S. Wood. When thejudgment was obtained, it was agreed between the par-' ties, that, if the defendant would not appeal to the S uperior Court, a cessat executio, until the succeeding May Term of the Court, should be entered. Accordingly the following entry was made upon the docket: “ Stay execution, until May Term and thereafter until called for.” Between the February Term, when thejudgment was obtained, and the May Term following of the County-Court, a Term of the Superior Court intervened, at which judgments were confessed to his other creditors by J. S. Wood. Thereupon, the intestate, Dail. caused t te execmimiu controversy to issue upon his judgment, before the expiration of the time agreed on. Upon the application of Wood and the plaintiffs in the judgments confessed, the County Court at May Term set it aside and Dail appealed. In the Superior Court the order of the County Court was reversed, upon the ground, that the order, entered on the docket, was a private agreement between the parties, and not a record of the Court.

In this opinion, we do not concur. The agreement, upon being entered on the record of the Court in the manner this was, became a rule of Court, vesting in the parties legal rights, which it was the duty of the Court to protect. After a final judgment, in favor of a plaintiff, he is entitled to his execution and may take it out, at any tune within a year and a day, where the parties remain the same. If, however, a writ of'error is brought, or the parties, at the time the judgment is obtained, agree, that an execution shall not issue for a.certain time, which is duly entered of record, the time, within which the plaintiff can take out his execution, is extended to twelve months and a day from the decision on the writ of error, or the termination of the specified time; and no execution can regularly issue in the mean time, except by order of the Court. 2 Tidd’s Prac. 994 — 1 Mod. Rep. 20. In his first volume, page 550, Mr. Tidd states, that when a judgment is confessed upon terms, which are duly entered, it is, in ellect, a conditional judgment, and the Court will •take notice of the terms and enforce them. Here, the judgment became, by the agreement of the parties, a conditional judgment, so far as the execution was concerned. The defendant in the original action had a right to appeal to the Superior Court ; the effect of his so doing would have been to vacate the judgment, delay the plaintiff, and put him to the trouble and expense of another trial. To avoid these results, Hail, the plaintiff, agreed to a ces'sat executio, for a limited time. 'Phis was entered on the records oí the Court, at the instance of the parties and in their presence, by a pro er ollke.- of the C am. 'Tills was done in the Clerk’s office, during terra time, and the Court met and sat on the second day after; so that the conclusion of law is, that it was recognised and adopted by it. Jfthereby became a rule of the Court, and beyond the action of ^either of the parties without its order. The execution in this case was improperly issued, not because thé rule of Court vacáted the judgment, but because it violated that rule or ^>rder. That the County Court had the power to set it aside on the application of J. S. Wood, who was the defendant, is shown by the case of Cody v Qunn, 6 Ire. 193, and they were right in so doing.

We think there was error in the Court below. The judgment is, therefore, reversed and that of the County Court affirmed.

Pér Curiam. Judgment accordingly*