Osborne v. Toomer, 51 N.C. 440, 6 Jones 440 (1859)

June 1859 · Supreme Court of North Carolina

51 N.C. 440, 6 Jones 440

W. D. OSBORNE v. A. D. TOOMER and F. S. DAVIS.

The extreme sickness of the principal in an insolvent bond, and the the sickness of the surety, whereby they were both unable to attend the Court to which the bond was returnable, furnishes no reason why a judgment rendered against them on such failure, should be set aside as being void. Clerks, during- the term of court, can only make short minutes from which they must make out their more formal record out of term time, and they are at liberty to put all orders and judgments in proper form.

Tins was a rule on the plaintiff to vacate a judgment, and set aside an execution thereon, heard before Caldwell, J., at the last Fall Term of Guilford Superior Court.

The facts were, that the plaintiff recovered a judgment against Toomer, in the Superior Court of Guilford, on which lie sued out a ca. sa., returnable to the term of that Court, held in the autumn of 1858. On being arrested, Toomer entered into bond in the usual form, for his appearance at the return of tho writ, and Davis executed the bond as his surety. The ca. sa. and bond were duly returned on Tuesday of the term ; the plaintiff’s attorney had Toomer, called, and, upon his failing to appear, his default was recorded; but the gentleman of the bar who appeared for Toomer in the suit suggested that he had received information by letter that he was prevented by sickness from attending, and requested that no judgment should be entered on the bond, saying that he expected to be able to establish the fact, before the end of the term, and, thereupon the judgment was deferred, and the counsel for the plaintiff agreed, that if the fact should be established, he would not pray judgment at that term. On Friday following, the counsel for the plaintiff, after havingTooiner again called, had his default entered, and nothing further being said of his sickness, he then moved the Court for judgment against the principal and the surety, and the Court ordered it accordingly, and then the attorney for the plaintiff remarked that he had drawn up the judgment formally, and he then delivered the paper to the clerk in open Court, and told him that it was the form of the judgment. The clerk made an entry in his minutes in these words: “W. D. Osborne and A. D. Toomer: the defendant in this case, A. D. Toomer, being solemnly called, fails to appear: judgment of the Court is rendered for the debt and costs.” But finding the paper in January following, (the paper which had been given to him by the attorney, and which he had forgotten,) in making up the records of that term, he entered it in the record of that case as the judgment. The record, as thus made up, after stating that Toomer was called and failed to appear, purports to be a judgment against him and Frederick S. Davis, the surety in the bond for his appearance, for the sum of $1418 GO, the penalty of said bond, to be discharged by the payment of <|709.30 with interest on $589.82, from the 26th of October, 1857, until paid, and the costs of the suit; which accords with the debt, damages and costs set forth in the execution.

On the part of Davis, it was also established by uncontra-dicted affidavits, that during the whole of the term of Guil-ford Court, (which was the last week in October, 1858,) the debtor, Toomer, was extremely ill in Chatham county, where he resided, and that he could not go, nor be carried to the Court, and that he died of that illness in the succeeding month of November, and died insolvent, and,’ indeed, without any property, and that, also, the surety, Davis, was so sick during the Court, that he was confined to his house in Chatham, and could not have attended the court without much danger.

The plaintiff sued out & fieri facias on the judgment in 1858, and the rule obtained, was to set aside the execution, and vacate the judgment.

The presiding Judge was of opinion that the judgment had not been taken according to the course of the courts, and therefore made the rule absolute.

The plaintiff prayed an appeal, which was granted; the Court at the same time, directing that the affidavits respecting the sickness of the parties, should be sent to this Court, as a part of the case.

McLean and Morehead, for the plaintiff.

Jfowle, for the defendant.

RuffiN, J.

Elis Honor was, probably, somewhat moved by the hardship of the case, on the other point, in forming his opinion on the point decided, and we might bo inclined to follow his example, if it could be done without danger of a general mischief. The judgment was, certainly, regularly given; for the statute directs, in case of the debtor’s failure to appear at the first term, that judgment shall be rendered instanter upon the bond returned, against the principal and sureties, to be discharged upon the payment of the debt and costs; and here the judgment was given by the Court after the debtor was duly called for the second time, and his default recorded. It is not what is called an office judgment only, but was that of the Judge himself; and, even if it were erroneous, it could not be corrected in this manner. But it was not erroneous, as it accords with the express words of the statute. Perhaps his Honor may have considered the subsequent more formal entry of the judgment by the clerk, in making up the record out of term time, irregular and improper. That, however, is hardly probable, as that is the universal course, and necessarily so. During term, the clerk can only make short minutes, and in making up the record, he is at liberty to put the orders and judgments into proper form, and supposing the clerk to com-' mit a misprison in making up the record, that would be no ground for vacating the judgment, but, on the contrary, it would authorise the other side to ask a correction of the record, so as to make it consistent with, and support the actual decision made by the Court, of which, in this case, there cannot be a doubt. The Judge, in fact, gave the judgment on the bond, and in the state in which the case then was, the only one which he could have lawfully given. It may be reversed, if erroneous, but there is no power to vacate it.

There was no decision on the other point, and, therefore, it it is not, strictly speaking, brought up by the appeal; though apparently, his Honor intended it should be. The Court, has, however, considered it at. the instance of the counsel, and, in order to satisfy the parties it is well to express the opinion that has been formed. However hard the case may be, the Court does not perceive any ground on which the surety can be relieved. The insolvency of the principal debtor furnishes none, nor his death, since the judgment. The extreme sickness of the principal at the time, would have excused his nonappearance, and entitled him and his surety to a continuance under the 10th section of the statute, if that had appeared to the Court. But that was not made to appear, and, therefore, the Court could not properly have continued it. That was the fault of the party; for, although the sickness might have excused the debtor for not appearing, and the surety for not bringing him in, yet it furnished no reason for not appearing by attorney, and showing by witnesses their inability to attend in person. They might, in that manner, have shown their right to a continuance, and having failed in that there is now, no help for them. In the nature of things, the personal appearance of the debtor, was known to be requisite, and that, on bis default, judgment must go against them, unless the default was duly accounted for, so as to prevent the judgment; and it is the misfortune of the parties, that they did not account for it in apt time.

The decision of the Superior Court is erroneous, and is reversed, and a procedendo must be awarded, — that the rule be discharged, and that the plaintiff may have execution on his judgment.

Pise Cubiam, Judgment reversed.