M'Gimpse v. Nash Vail, 5 N.C. 408, 1 Mur. 408 (1810)

July 1810 · Supreme Court of North Carolina

5 N.C. 408, 1 Mur. 408

William M’Gimpse v. Abner Nash Vail.

"j-From Chowan.

A. sued B. in tile County Court, and recovered a judgment, from which B. appealed to the Superior Court, and gave bond, with C. and D. his securities, for the appeal. In the Superior Court, A. was nonsuited, and at the same term, the nonsuit was set aside by consent of B, who at the next term confessed judgment; and at the same term, judgment was entered up against the securities for the appeal. Execution issued, and the securities moved to set aside the execution as to them, because B. had set aside the nonsuit without their consent. Motion disallowed; for

The securities have no control over the proceedings between the Plaintiff and Defendant, and are bound by all the rightful acts of the Defendant in the course of those proceedings.

This was a motion to set aside an execution. The Plaintiff brought an action of debt against the Defendant in Chowan County Court, and obtained judgment, from which the Defendant appealed to the Superior Court, and entered into bond with two securities for prosecuting his appeal and performing the judgment of tlie Superior Court. At March term, 1808, of the Superior Court, the Plaintiff was nonsuited. The Plaintiff’s counsel being about to move to have the nonsuit set aside and a new trial granted, on affidavits which were shewn to the Defendant, the Defendant proposed to set the nonsuit aside, on condition that each party should pay his own costs up to that term. This was assented to by the Plaintiff’s counsel, and the nonsuit was set aside. At the succeeding term, judgment was confessed by the Defendant, and on motion, judgment was entered up against the securities for the appeal. On this judgment, execution issued, and at the next term, the securities moved to have the execution set aside as to them ; contending that they were discharged by the nonsuit, and that it was not competent for the Defendant to set aside the nonsuit without their consent, so as to bind them de novo.

Tayxou, Judge,

delivered the opinion of the Court:

It would be a manifest violation of the acts relative to appeals, if securities were, discharged by a nonsuit, which was not the ultimate judgment of the Court, or which the parties in a spirit of accommodation, or from a sense of justice, mutually agreed to set aside.

The nature of the engagement entered into by the securities to an appeal bond is, to perform the judgment of the Superior Court: the meaning of which is, its final determination or sentence upon the suit. Until that is rendered, the Court maintains jurisdiction over the cause, and may make such orders as justice requires, and the legal course of judicial proceedings sanctions. With equal force it might be contended, that a verdict in fa-vour of the Defendant operated a discharge to the securities, although a new trial should be granted, as that a nonsuit erroneously awarded by the Court should produce the same effect, although it were afterwards set-aside on a more attentive consideration of the subject,»— Let the motion be disallowed.