Cohoon v. Morris, 46 N.C. 218, 1 Jones 218 (1853)

Dec. 1853 · Supreme Court of North Carolina

46 N.C. 218, 1 Jones 218

P. H. AND R. H. COHOON vs. MORDECAI MORRIS, J. C. B. EHRINGHAUS, W. W. GRIFFIN, AND J. J. GRANDY.

Where a bond is returnod to Court, for the appearance of a person, under the act for the relief of insolvent debtors, with A, B, and C. as his sureties, and such person and his sureties are discharged from “all liability on his bond,” and a record made oi such discharge, and the defendan* in the execution gives a new ¡band for his appearance further at Court, with A and D as his sureties, and the case was then continued for three terms, when a judgment was entered against A, B, and C : Held, that such judgment was irregular and invalid.

Where an appeal was taken to the Superior Court from the judgment: held,that no judgment could be rendered on the bondgiven byA and D. Held, also, that no judgment could be given on either bond against A singly, in the Superior Court, though he was on both bonds.

Appeal from tbe Superior -Court of Pasquotank, at Spring Term,1853, bis Honor Judge Saunders, presiding.

. The plaintiff, sued out a capias ad satisfaciendum against the defendant Morris, returnable to December Term, 1850, of Pasquotank County Coürt; which was returned with a bond for the defendant’s appearance at that •term, and the defendant appeared accordingly, and was sur- ' rendered by his sureties. He was ordered into custody, but-appealed to the Superior Court, .and gave bond for his appearance at the next term of the Superior Court: at that term the appeal was dismissed, as having been improvident, ly granted. A writ of procedendo was awarded .to the . County Court. The procedendo came down to the County Court, at June Term, 1851, when the following entry was made in the case, “ dismissed by the plaintiff, and judgment against the plaintiff for costs.”

Between the term of the Superior Court, at which the procedendo was ordered, and at June Term, 1851, of the County Court, the plaintiff sued out another ca. sa. against the defendant Morris, upon the same judgment, under which he was again arrested, and gave bond for his appearance at June Terra, 1851, with Ebringbaus, Williams and Grandy as-bis sureties: at that time the following'entry appears in the minutes of the Court: “ Defendant and bis sureties discharged by the plaintiff from all liability on his bond,,for his appearance at this term of this Court. Defendant enters into bond with J. C. B. Ehringhaus and W. W. Griffin, as his sureties for his appearance at the next term of the Court. Case continued.” The case was continued thence from term to term until March Term, 1852, when the following entry was made on the record t “The defendant being called, and failing to appear, and J. C. B. Ehringhaus, W. W. Williams, and-J. J. Grandy failing to ploduee the body of Mordecai Morris, the defendant, on motion, judgment against said Morris and his sureties, on his appearance bond, $430 13 •cents, to be discharged on the payment and $16 37, former costs, from which judgn his sureties, Ehringhaus, Williams and Gráfjdj pealed the Superior Court. At Spring Term, 1853,' and the plaintiff moved for judgment again| which motion was refused by the Court. 1

The plaintiff then moved to be allowed tm dant, and take judgment against him and ringhaus and Griffin, on the bond given by them, which motion was also refused by the Court.

The plaintiff then moved for judgment against Morris and Ehringhaus, upon the bond given by Morris, Ehringhaus and Griffin, upon the ground that Ehringhaus was upon both the bonds given by Morris for his appearanee in the County Court, whieh motion his Honor also refused.

Judgment against plaintiff for costs. Appeal.

Smith and -Jordan, for plaintiff.

Poole, for defendants.

Battle, J.

It seems to us, that the plaintiff was not entitled to a judgment against the defendants,, or any one or more of them, upon' either of the motions which: he submitted to the Court, and that his íTbnor was right in refusing each and all of them. Whether the defendant Morris was ever discharged from arrest, under a capias ad satis* faciendum by the plaintiff, so that he could not be taken-in execution again, as contended By his counsel, we need not decide. Supposing the-arrest on the 14th of May, 1-851!,. proper, and-the bond'then given with the defendants Williams, Ehringhaus and Griffin, valid, the- bond, in connection with the execution, was in the nature of process to compel an appearance to answer at the next term of the County-Court. Winslow v. Andeeson, 4 Dev. and Bat., 9. At that term, the proceedings against them were discontinued by the plaintiff himself, and a new bond.’ was taken from the debtor, with other sureties, for his appearance at the next succeeding term.. This proceeding, which was in the nature of a new suit,, was kept in Court by regular continuances, until March Term, 1852, when the defendant, Morris, being-called, and failing to appear, the plaintiff moved! for judgment, not against the sureties on the last bond, who were in-legal contemplation present in Court and ready to answer-the motion, but against the sureties to the bond of May 1851, as to whom the plaintiff had discontinued his suit nine months before, and who were therefore not before the Court,, to have a judgment rendered against them. That judgment was therefore irregular, and ought not to have been given,. Winslow v. ANdeRson, ubi supra. From it, the defendants had good reason for an appeal,, and the Judge, who presided in- the Superior Court, very properly refused to affirm it.- The plaintiff then moved for judgment against the principal and sureties to the last bond, and that was also refused, for the very sufficient, reason, that the bond, or rather the parties to it,, were not'before the Court. Certainly the appeal in the first suit or proceeding, did not take up the second suit or proceeding,, which was- entirely distinct !from it. If the two first motions ‘Were properly refused, ¡ímquestionably the last was, for no judgment could be given • against Ehringhaus, except.upon one or the other bond, and ■we have just declared,'that no judgment,could be rendered ¡against the obligors to either of them..

The several motions' of the plaintiff "being refused, the - judgment .against him. for costs was right, and must be ■•affirmed.

. Judgment, affirmed.