Webb v. Comm'rs. of the Town of Beaufort, 70 N.C. 307 (1874)

Jan. 1874 · Supreme Court of North Carolina

70 N.C. 307

LEWIS WEBB v. COMM’RS. OF THE TOWN OF BEAUFORT.

Where a debt against a municipal corporation has been reduced to judgment in a Court of competent jurisdiction, a premptory mandamus may be properly asked for, although such judgment is dormant.

(iMtt&i'loh v. Commissioners of Cumberlamd, 65 U. O'. Rep.. 408,. cited and approved.)

Civil actioN, tried at the Fall Term-, 1873, of the Superior Court of CaRtebet county, before his Honor, Judge Clarice.

Plaintiff alleges, that at February Term, 1861, of the Court of Pleas and Quarter Sessions of Carteret county, he recovered! against the defendants a judgment for $300 principal money,, and $33,90 interest and costs; that an execution thereon issued, under which, from the sale of the Market House and certain lots in the town of Beaufort, there was raised $12, which was applied to the payment of the original and subsequently accrued costs in the suit; that the defendants owned no other property out of which the judgment could be collected. That no part of the principal and interest of said judgment has been paid, whereupon the plaintiff demands judgment, that apreremptory writ of mandamus be issued, commanding the “Commissioners of the town of Beaufort” to pay or cause to be paid to the plaintiff’ or his Attorney, the sum of $333,90.

Defendants demurred to this complaint, on the ground, that the judgment of the Court of Pleas and Quarter Sessions in favor of the plaintiff, and against the defendants, set forth in the pleadings, was and had been, for many years dormant.

His Honor gave judgment in favor of defendant, and dismissed the complaint, and the plaintiff appealed.

Hubbard, for appellant.

The rights of the plaintiff were ascertained and determined by the County Court of Carteret, and the Court may grant a peremptory writ of mandamus in the first instance.

The dormancy of the judgment of the County Court, it is insisted, does not alter the character of plaintiff’s claim. It is equally ascertained and certain when the judgment is dormant as when it is not.

The dormancy of a judgment does not at all affect its dignity in the administration of assets. State v. Johnson, 1 Iredell, 231, and in anology to this principle it is submitted that the dormancy of the judgment in this case does not defer the certainty of plaintiff’s claim.

Oreen, contra.

Rbade, J.

When the demand, in this case the debt, of the •plaintiff is ascertained by the j udgment of a Court of competent jurisdiction, a peremtory mandamus may be asked for. Lutterloh v. Board of Commissioners of Cumberland County, 65 N. C. R., p. 403. This would probably not be controverted, but the demurrer is upon the ground, that the judgment which ascertained the plaintiff’s debtis dormant. Take that to be so ; still a dormant j ndgment is evidence of indebtedness, and of the amount of indebtedness, just, as well as a judgment not dormant, and may be enforced as well, but not in the same way. The one by execution the other by action to revive. If the plaintiff’s judgment were alive, he would have no remedy to enforce it by execution because the defendant has nothing which an execution can reach. And as he would have to rerort to the present remedy by mandamus, there is error in sustaining the demurrer and dismissing the action.

Let this be certified.

Per Curiam. Judgment reversed.