Spivey v. Jenkins, 36 N.C. 126, 1 Ired. Eq. 126 (1840)

Dec. 1840 · Supreme Court of North Carolina

36 N.C. 126, 1 Ired. Eq. 126

LEVIN SPIVEY and WIFE vs. WILEY JENKINS.

Where a bill is filed against one of the sureties to a guardian bond to recover an amount due by the defalcation of the guardian, upon the ground that the bond has been destroyed by fire, and it appears on the pleadings that the principal is dead, insolvent, and has no personal representative, it is no objection to the bill that a personal representative of the principal is not made a party defendant.

Nor is it any objection that the other surety is not made a party, when it is charged, and so appears, that he is beyond the jurisdiction of the court.

The ordinary practice of Courts of FJquity, where one of several parties is out of the jurisdiction apd the others within it, is to charge the fact in the bill that such peison is out of the jurisdiction, and then to proceed against the other parties; and this practice is not changed in our courts by the operation of the Act of Assembly, 1 Rev. Stat. ch. 32, sec. 4.

This bill, which was filed returnable to Spring Term, 1833, of Hertford 'Court of Equity, charged that one John Nichols w&s', about the year 1824, duly appointed by the Court of Pleas and Quarter Sessions of Hertford county, guardian to the plaintiff. Margaret, then an infant, who has since intermarried with .the plaintiff Levin — that one Joseph P. Howard and the defendant Wiley Jenkins were the sureties of the said- John Nichols for his guardianship; that the said John, Wiley and Joseph, executed a bond in due-form of law in Hertford Court of Pleas and Quarter Sessions, which bond was accepted by the court and filed among its records, and was for the faithful performance on the part of John Nichols, of the duties of guardian of the plaintiff Margaret, and contained' all the proper covenants for the performance of the duties of a guardian. The plaintiffs alleged that they were unable to state to whom the bond was made payable, or what was its amount, as it was destroyed with the other records of Hertford county, by the burning of the Court House in the year 1830 or 1831. But they charged that the said bond was made payable to the proper parties required by law, the justices then on the bench, and composing the Court of Pleas and Quarter Sessions of said’ county and was for an amount more than sufficient to cover all the .property, which belonged to the plaintiff Margaret, and that the said bond was made and executed in every respect according to the formalities of law. The bill then charged that the said John Nichols, after his appointment as guar■dian, received into his possession a large estate belonging to the plaintiff Margaret, out of which he made great profits, -&C-, and for which he never accounted. The plaintiffs then '■stated that the said John Nichols was dead, intestate and insolvent, and that no administration had been taken out on his estate, and that Joseph P. Howard, the co-surety, with Wiley Jenkins, has removed beyond the jurisdiction of this court; that the plaintiffs had applied to the said Wiley Jenkins, and requested him to come to a settlement of the guardianship of the said John Nichols, and to pay to the plaintiffs what should be found due to them, but the said Wiley had refused to do so. The bill therefore prayed that the said Wiley might be decreed to come to an account and settlement of the said guardianship, /jgp plaintiffs ivhat should be found due to theffi&cs.'RV4 k \

The defendant, Wiley Jenkins; in his answer,'*-denied in the most positive terms, that hefc^-^ag|S|y0|y; for John Nichols, as guardian to the plaintiff Margaret, or that he ever signed any bond with j osepn\ PL ajw other person, as sureties for the faithfiir^jscharge, onjpl part of the said Nichols, of his duties as guardm^tffthe said plaintiff. He averred that he did not even know whether John Nichols had ever been appointed guardian of the plaintiff; and if he had been, whether he ever executed any guardian bond. To the answer there was a general replication; and depositions having been taken, certain issues Were submitted to a jury-. The jury found-that the defendant, Wiley Jenkins, was the surety to the bond of John Nichols, as guardian to Margaret Baker, now Spivey, and Susan Baker; they also found that the penalty of the bond was sufficient to cover the amount due the complainant, say fifteen hundred dollars; they further found that the guardian bond of the said John Nichols was destroyed with the records of Hertford county, by the burning of the Court House. On a reference having been made to the Clerk and Master, and an account taken, he reported a balance due the complainants — and the cause was set ^or hea™8> At the hearing, in the Court below, the defendant’s counsel moved to dismiss the plaintiff’s bill, because J°sepk P. Howard, the co-surety, was net made a party; and further, because the personal representative of John Nichols was not also made a party defendant. This motion was overruled by his honor Judge Pearson, the presiding judge, and a decree entered for the plaintiffs. From this decree the defendant appealed to the Supreme Court.

Iredell for the plaintiffs.

A. Moore for the defendant.

Gaston, Judge.

The only objections urged against the decree, which has been rendered below, are because of an alleged defect of parties. The first objection is, for that the representatives of Nichols, the principal obligor, have not be,en made defendants. This objection is clearly untenable, for in the amended bill, which has .been taken pro confesso, it is distinctly charged that Nichols has died insolvent, and that he has no personal representative. The other objection is, for that Howard, the co-surety of the defendant, has not been made a party defendant. We are of opinion that this objection also must be overruled, because the bill charges, and the allegation is not denied, that Howard is without the limits of the State. The ordinary practice of Courts of Equity, where one of several parties is out of the jurisdiction, and the others within it, is to charge the fact in the bill that such person is out of the jurisdiction; and then to proceed against the other parties, although the former has not been brought in. The court cannot, indeed, render any decree against him; but if the case be of that kind, in which a decree may be rendered against the defendants in the court, without impairing the rights of the absent party, the court will proceed to hear the cause as between the litigant parties, and to decree accordingly upon the merits. See Smith vs. Hibernian Mine Company, 1 Sch. & Lef. 240. Haddock vs. Tomlinson, 2 Sim. & Stu. 219. Elmendorf vs. Taylor, 10 Wheat. 162. West vs. Rundall, 2 Mason 181. The doubt, if any, whether this practice ought to obtain here, is because of the statutory provision in this State, by which our Courts of Equity are authorized to make an order requiring a defendant, residing without the limits of the State, and on whom process has not been served, to appear therein on an appointed day, and if he fail to comply with such order, after due publication thereof, to order the plaintiff’s bill to be taken pro confesso against him, and make decree thereon as shall be thought just. But the decree thus rendered is not absolute. If the plaintiff should seek to enforce it against the property of the absent defendant, he is obliged to give security to abide such order, touching the restitution thereof, as the court may make, if the defendant should appear and petition to have the cause re-heard..— Should the defendant, within two years after rendering the decree, come within the State, the plaintiff must serve him, within a reasonable time, with a copy of the decree; and the defendant may, within twelve months after service of a copy of the decree, and, if he has not been so served with notice, may, at any time within three years after rendition of the decree, be permitted to answer the bill exhibited, and cause such proceedings to be had in the case, so far as he is concerned, as though no decree had been rendered, and the cause had then been originally instituted against him. 1 Rev. St. c. 32, s. 4. The relief which can be obtained under the piovisions of this statute against a non-resident, is so imperfect and inconclusive, that our courts have not deemed the possibility of obtaining it, as furnishing a sufficient reason for refusing redress to a plaintiff against a defendant directly subject to their jurisdiction, to which redress the plaintiff shews himself entitled, because he has not also made par»ties to his bill, persons residing without the limits of the State, who have an interest in the object of the suit. The point was directly decided at an early day after the enactment of the statute in Ingram vs. Lanier, 1 Hay. 221, was recognized by this court in Vann vs. Harget, 2 Dev. & Bat. Eq. R. 31, and must be considered as now fully settled.

Decree affirmed with costs. Per Curiam.