Clayton v. Fulp, 52 N.C. 444, 7 Jones 444 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 444, 7 Jones 444

JOHN E. CLAYTON et al v. J. W. FULP.

Where a warrant was dated of a certain day, and an execution dated of the same day with the warrant, it -wasIMd that a judgment on the same piece •of paper with them, was thereby made sufficiently certain as to the time of its rendition.

This was-an action of debt on a former judgment, coming ¡up by appeal from a justice of the peace, tried before Bailey, J., at last :Spring Term, of Eorsythe Superior Court.

In support of their action, the plaintiffs offered in evidence a former judgment which was without date, but the warrant was dated on the 19th of April, 1853, and. was signed by the same justice that granted the judgment, and immediately following the j udgment, was an execution dated of the same date with the warrant, (19th April, 1853,) which was signed ■by the same magistrate whose signature was to the other two precepts.

The defendant -contended that the j udgment was no of validity for the want of a date, and called on his Honor so to charge. This, the Court declined, and gave it as his opinion that its date ivas rendered -sufficiently certain by the other two dates on the same -piece ef paper. The defendant’s counsel excepted.

Yerdict -for the plaintiff. Judgment and appeal by the defendant.

McLean, for the plaintiff.

Morehead, for -the defendant.

Manly, J.

This was a warrant upon a justice’s judgment, begun 23d February, 1859. Upon the introduction of the testimony on the trial below, it appeared there was no date to the judgment, and it was contended, on that account, it was void and could not support the action. The facts in respect this seem to be that the warrant in the usual form has a date, the 19th of April, 1853. At the foot of the warrant is the judgment, signed by the justice who gave the warrant, but without date; and still, below all, on the same piece of paper, is an execution in the regular form, and of the same date with the warrant, 19th April, 1853.

We think the date of the judgment is sufficiently certain. “ Id certum est, quod reddi certiom potestThe warrant is dated, the execution is dated, both of the same day. The position of the judgment as to time, ought to be between the warrant and execution. There is among them a legal sequence and dependence in that order, and we accordingly find it inserted in a body of writing between the other two. The inference is conclusive that the judgment was given on the same day, during an interval of time between the other two; that is, after the warrant, and before the execution.

It seems as certain as any thing inferential can be. At the last term of this Court, when the regularity of an appeal without any date, was questioned, it was held that as it followed immediately the judgment in its position on the paper, it would be taken to be on the day of the judgment, upon the principle that every thing is supposed to be done at the proper time, and in order, until the contrary appear. As this is the only matter of defense to this action, the judgment below should be affirmed.

Per Curiam,

Judgment affirmed.