Cohoon v. Morton, 49 N.C. 256, 4 Jones 256 (1857)

June 1857 · Supreme Court of North Carolina

49 N.C. 256, 4 Jones 256

COHOON & McINTOSH v. ROBERT MORTON, et. al.

There is no necessity that an appellant should himself sign, or otherwise execute, the appeal bond.

Where a judgment and a ca. sa. upon it w'ere taken in the name and behalf of “ A and B,” a firm, and a ca. sa. bond taken, made payable to the same firm, upon the defendant’s default, it was held, that no judgment could be rendered on such bond in the name of certain individuals claiming to be the persons meant by “A and B;” nor in any other manner; for, “A and B,” not being a corporation, cannot be recognised in legal proceedings.

This was a motion for j udgment on a ca. sa. bond, heard before his Honor, Judge Bailey, at a special Term, 1854, of Pasquotank Superior Court.

The judgment upon which the ca. sa. issued, was in favor of Cohoon & McIntosh for sixty dollars, rendered by a justice of the peace. The ca. sa. issuing thereon pursued the judgment, which was in the name of Cohoon & McIntosh, as plaintiffs. Tbe bond given for tbe defendant’s appearance, under tbe ca. sa., was payable to Coboon & Mclntosb, and recited tbe ca. sa. simply as it' was, without any explanation of tbe name and style of tbe obligees. At tbe term of tbe county Court, to which the defendant was bound to appear, tbe defendant moved to quash the ca.-sa., and dismiss tbe proceedings ; which motions were sustained by tbe Court; from which judgment tbe plaintiffs appealed, and gave bond for tbe appeal, with sufficient sureties. -The appeal bond was signed by tbe plaintiffs, as “ Cohoon & Mclntosb.”

In tbe Superior Court, tbe defendant "moved to dismiss tbe appeal, upon tbe ground that the signature by tbe plaintiffs was a nullity; which motion was refused.

Tbe plaintiffs then were allowed to call tbe principal obli-gor in tbe ca. sa. bond, who made default; whereupon tbe plaintiffs moved for judgment,‘in tbe names of P. A. R. C. Coboon and R. II. Mclntosb, which was allowed, and judg-menf entered accordingly; from which tbe defendant appealed to this Court. \

Smith and Martin, for plaintiffs.

Pool and Jordan, for defendants.

Battle, J.

Tbe motion made by the defendants in the Superior Court, to dismiss the appeal, was properly over-ruled. It was not necessary that tbe appeal bond should have been signed by tbe plaintiffs at all, and of course it did not invalidate tbe bond, as to tbe other obligors, that they signed as “ Coboon & Mclntosb.” In tbe case of Woollard v. Woollard, 8 Ire. Rep. 322, it was held by tbe Court, that where tbe appellant in a suit failed to prosecute it with effect, tbe appellee might “ take a judgment against tbe principal, upon bis liability as a party to tbe suit, and then another and separate judgment against tbe sureties on tbe bond; orbe might take a joint judgment against the principal and. bis sureties on the bond. We are unable to perceive any advantage which tbe appellee could have by taking a joint judgment; and we are therefore of opinion that an appeal bond executed by the sureties only, would be sufficient to sustain the appeal.

The motion of the plaintiffs for a j udgment against the defendants, Horton and his sureties, on his appearance bond, ought likewise to have been over-ruled. This bond was taken, payable to “ Cohoon & McIntosh,” and the motion for judgment was made in behalf of P. A. R. C. Cohoon and R. H. McIntosh, partners in trade, trading under the firm and style of Cohoon & McIntosh, and the judgment was given accordingly. This was, we think, erroneous. In the care of Smith v. Shaw, 8 Ire Rep. 233, the Court intimate the opinion that a declaration upon a sci.fa., reciting a bail bond executed in a suit brought and prosecuted to judgment, by John Smith, Joseph P. Smith, and "William G. Smith, trading and acting under the name and style of John Smith & Co., would not be sustained by proof of a bail bond given in a suit brought in the name of Smith & Co. If this be so, and we think it is, then the cases of Williams v. Bryan, 11 Ire. Rep. 613, and Earle v. Dobson, 1 Jones’ Rep. 515, are directly in point to show that P. A. R. C. Cohoon and R. II. McIntosh, partners in trade, and trading under the firm and style of Cohoon & McIntosh, could not have a judgment upon a bond payable simply to “ Cohoon & McIntosh.” These persons are not a corporation, and are not to be recognized in legal proceedings, unless it is stated who they are, and how they claim to be acting under a particular name and style. The judgment is erroneous, and must be reversed.

Per Curiam. Judgment reversed.