Buchanan v. McKenzie, 53 N.C. 93, 8 Jones 93 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 93, 8 Jones 93

WILLIAM BUCHANAN (plaintiff in error) v. B. B. McKENZIE (defendant in error.)

A judgment, for the penalty authorised by the latter clause of the 5th sec. of 29th eh., of the Rev. Code, against a delinquent sheriff, &c., is only an incident to the main judgment, against him and his sureties, - authorised by the former part of the same section; upon a reversal, therefore, of the latter, the former falls with it.

Writ of eror, before Saunders, J., at the Special Term, June, 1860, of Richmond Superior Court.

The error, assigned in this case, was the granting of judgment of $100, by the County Court of Richmond, against the sheriff. Under the provision of statute, ch. 29, sec. 5, which, after authorizing a summary judgment against a delinquent sheriff, clerk, &c., and their sureties, to be had, on motion, for the amount of public money due from such delinquent officer, provides, that “every sheriff, clerk and master, and clerk aforesaid, against whom judgment is so rendered, over and above all arrearages, shall forfeit and pay, the sum of one hundred dollars, to be recovered at the same time, for the use of the county.” The judgment in the. preceding case (ante 91) having been entered, as therein explained, this motion, for the penalty, was made, and judgment for the same was entered by said Court.

The Court below adjudged, that there was no error in the records of the County Court, and ordered a procedendo, to have execution issued on the judgment in said Court, from which the plaintiff, in error, appealed to this' Court.

Leitoh, Bowie, Bl/ue and McDonald> for the plaintiffs.

St/range and B. BL. Bcubtle, for the defendants.

Pearson, C. J.

As the judgment against a delinquent sheriff, for the forfeiture of $100, is a mere corollary or incident to the judgment against him and his sureties for damaages, it follows, that if the principal judgment be erroneous, the latter must be so, also; and if the principal be reversed, and held for naught, so must the incident; on the ground that the deUngneney of the sheriff, on which the latter judgment is predicated, has not been established.

There is error in the judgment of the Superior Court, and the same is reversed. There is error in the judgment of the County Court, and there will be judgment reversing the same and restoring the plaintiff in error, to all things which he has lost by occasion of said erroneous judgment and the proceedings thereon; 2 Saun. Rep. 101 z (in note); 2 Bacon’s Abrdgt. 229.

Per Curiam,

Judgment reversedt