Harrison v. Simmons, 44 N.C. 80, 1 Busb. 80 (1852)

Dec. 1852 · Supreme Court of North Carolina

44 N.C. 80, 1 Busb. 80

HARRISON & RESPASS et al. vs. SAM’L S. SIMMONS, AGENT OF P. P. LAWRENCE.

Where A. obtained judgment on an attachment against B., upon a rule against him by other judgment creditors of B. in attachment, to show cause why the monies raised by the-Sheriff’s sale should not be applied to their executions, and not his: — Held, that A.f$ judgment could not be collaterally impeached, by evidence showing that at the time it was finally obtained, the debt had been paid.

(The cases of Carlo' v. Sho'ijf of Halifax, 1 Hawks 483, Governor v. Griffin, 2 Lev. 352, Hodges v. Armstrong, 3 Lev. 253, and Foster v. Fi'ost, 4 Dev. 424, cited and approved.)^

Like the next preceding case, the same plaintiffs v. Pender, this was an appeal from the judgment of his Honor, Judge Manly, on the last circuit at Washington, discharging a similar rule, under the following cimumstances: The defendant, as the agent of Lawrence, issued his attachment against Rhodes on a note pajmble to Lawrence as Gashier of the Branch of the Bank of the State at Tarborougb, to which Simmons was surety. At may Term of the County Court, 1.851, judgment was taken on this attachment, and at the same term the plaintiffs also had judgments on attachments issued by them against said Rhodes. Executions were issued, and the property levied on was sold by the Sheriff, who, at August Term, brought the money, the proceeds of sale, into Court, and asked the advice and direction of the Court as to its application. The plaintiffs had a rule served on the defendant, returnable to the same Term of the Court, to show cause why the proceeds should not be applied to their executions. The rule was discharged in the County Court; and an appeal taken to the Superior Court, where the case coming on to be argued at last Fall Term, the plaintiffs offered to prove, in support of the rule, that before the rendition of final judgment on the defendant's attachment, the surety, Simmons, had paid to said Lawrence the entire amount of the debt upon which his attachment was issued, and which was accepted by Lawrence in satisfaction of the debt. His Honor, the presiding Judge, refused to hear the evidence, and discharged the rule; and judgment having been rendered accord' ingly, the plaintiffs appealed.

E. W. Jones, for the plaintiffs.

Heath, for the defendant.

Battle, J.

This case is the same in principle with that of the same plaintiffs against Pender, and must be decided in the same way. In that case the plaintiffs sought to impeach the validity of Pender’s judgment against Rhodes, by proving that at the time when he issued his detachment, he was not a creditor of Rhodes. Here the plaintiffs propose to do the same thing, by showing that before the final judgment was obtained by Peter P. Lawrence, his debt was satisfied by a payment made by the defendant Simmons, and therefore that Lawrence was not a creditor at the time when he obtained such judgment. But the judgment established the fact conclusively that he was a creditor, and the plaintiffs can-trot be permitted in this collateral way to deny it. Skinner v. Moore, 2 Dev. & B. 138. Had Simmons, as the surety of Rhodes, paid the debt to Lawrence after the final judgment had been obtained, then the testimony offered by the plaintiffs would have been admissible; not for the purpose of impeaching the judgment, but to show drat it had been paid, which, as Simmons was not a party to the judgment, might have had that effect or not, according to the intention of the parties. Carter v. Sheriff of Halifax, 1 Hawks Rep. 483, Governor v. Griffin, 2 Dev. Rep. 352, Hodges v. Armstrong, 3 Dev. Rep. 253, Foster v. Frost, 4 DeV. Rep. 424. But as the testimony was offered to prove the payment of the debt before the final judgment, it was inadmissible for that purpose, and was properly rejected. The judgment must be affirmed.

Per Curiam. Judgment affirmed.