Savage v. Hussey, 48 N.C. 149, 3 Jones 149 (1855)

Dec. 1855 · Supreme Court of North Carolina

48 N.C. 149, 3 Jones 149

SAVAGE AND MEARES vs. JOHN B. HUSSEY, ADM’R.

A judgment exceeding the sum demanded in the writ, is irregular and erroneous, but not void; its validity, however, cannot be questioned collaterally.

■ Therefore, where the writ demanded $300, and the judgment was for $309, it was Held, that a sheriff who had become bail, by failing to take a bail-bond from the defendant, could not avail himself of this variance as a defense upon a suit by set. fa. to subject him as bail.

A set. fa., to subjeeta sheriff as special bail, by reason of his default, need not set forth the cause of action upon which the judgment against his principal was obtained.

Scire nacías against defendant’s intestate as special bail of one George Gwyer, tried before his Honor, Judge Person, at the Fall Term, 1855, of Duplin Superior Court.

The following is the reciting portion of the sci. fa., viz: “ Whereas, heretofore, a capias ad respondendxim issued to the sheriff of Duplin, at the instance of Edward Savage and Gaston Meares, trading under the name and style of Savage & Meares, against George Gwyer, defendant, commanding the said sheriff to seize and take into his custody the body of the said George Gwyer, and him safely keep, so that he might have him before the justices of our court of pleas and quarter sessions, in and for the county of Duplin, at the court-house in Kenansville, on the 3rd Monday in October, 1851, then and there to answer the said plaintiffs of a plea of trespass on the case, to their damage three hundred dollars; and whereas the said capias ad respondendum, came into the hands pf Edward E. Hussey, esquire, sheriff of the said county, and was by him executed, &c.; and whereas the said sheriff took no bail of the said George Gwyer, wherefore, and by force of the statute, the said Edward E. Hussey became special bail of the said George Gwyer ; and whereas, at &c., judgment was duly entered against George Gwyer, in favor of the said Savage & Meares, for the sum of three hundred and nine 56-100 dollars damages, with interest on $296,95, from the rendition of the judgment, till paid, &c., which said judgment remains altogether unpaid and unsatisfied, &c.”

The writ in the case of Savage & Meares, was shown to have come to the hands of defendant’s intestate; it was in Gase, and demanded $300 damages. It was returned, “ executed,” but no bail-bond was returned, for, in fact, none liad been taken by the sheriff. At January Term, 1852, plaintiffs took judgment against Gwyer,for $309,56-100, and $8,90-100 costs. The case oame up to the Superior Court by appeal.

The defendant insisted, 1st. That the plaintiffs could not have judgment, for the reason that the writ against Gwyer was for $300, and judgment rendered against him was $309, 56-100, and costs,

2nd. That the soi fti, does not recite the cause of the action, in which the judgment against Gwyer was obtained.

Ilis Honor, being of opinion with the defendant, gave judgment accordingly, from which the plaintiffs appealed.

W. A. Wright, for plaintiffs.

Jieid, for defendant.

Pearson, J.

The judgment, being for a sum exceeding that demanded by the writ, is irregular and erroneous ; but it is not void, and has full force and effect until it be reversed. This must be done by a direct proceeding. Its validity cannot be impeached collaterally; consequently, the defendant cannot go behind the judgment, for the purpose of taking advantage of this variance!

Had the defendant taken a bail-bond, the penalty would have been $600, (double the amount named in the writ,) which is amply sufficient to cover the amount of the judgment rendered in this case. The defendant, by neglecting to take a-bail-bohd, made himself liable as bail, and of course his liability extended to $600. Had tbe judgment exceeded that amount, for instance, if it had been for $1000, it may be that tbe defendant might have gone behind tbe judgment, and bad reference to tbe writ, for tbe purpose of fixing the extent of bis liability. That question is not presented. Tbe plaintiffs do not seek to charge tbe defendant beyond tbe amount of bis admitted liability; that is, double tbe amount named in tbe writ.

As to the second question. If tbe sheriff takes a bail-bond, tbe sci. fa. must allege tbe execution of the bond, and tbe liability of tbe defendant by force and effect thereof, for tbe purpose of enabling him to deny tire execution, or take advantage of a variance or tbe like, which be will do under tbe plea non est factum. If tbe sheriff has neglected to take a bond, the sci. fa. must allege that tbe defendant was sheriff; that a capias act respondendum was put into bis bands, which was returned executed ; and that be bad failed to take a bail-bond, wherefore, by force and effect of tbe statute be became liable as bail. It is necessary to make these allegations, for tbe purpose of enabling tbe defendant to traverse any one, or all of them.

So, it is necessary to allege a judgment against tbe principal, for tbe purpose of enabling tbe defendant to traverse that fact by a plea of wul tied record. Before tbe late statute, it was necessary to allege that a ca. sa. bad issued, and tbe return of non est inventáis, for tbe purpose of enabling the defendant to traverse one, or both, of these facts. Eor what purpose, should tbe sci. fa. allege tbe cause of action in tbe suit in which judgment bad been taken against tbe principal % It in no wise affects tbe liability of tbe defendant, and be can take no advantage of it, one way or tbe other.

Per Curiam.

Judgment below reversed, and judgment for plaintiffs according to sci. fa.