Womble v. Little, 74 N.C. 255 (1876)

Jan. 1876 · Supreme Court of North Carolina

74 N.C. 255

JORDAN WOMBLE v. GEORGE LITTLE and HENRY MORDECAI.

Where A confessed judgment in a court of a Justice of the Peace, in favor of B, upon a note, upon its face bearing interest at the rate of eight per cent., and the Justice gave judgment for the principal of the note, “with interest from date,” and the judgment being sent to the Superior Court to be docketed, execution was thereon issued for the principal sum “ with interest at 8 per cent:” Held, that there was no material variance between the judgment as rendered and the transcript upon which the execution issued.

This was a ^MOTION in the cause heard before his Honor Judge Watts, at Fall Term, 1875, of the Superior Court of Wake county."

The motion was “ to reform the judgment entered, and for an order to issue to the Sheriff of Wake county to suspend the sale of property, upon which he had levied, until the motion was heard.”

His Honor granted an order to the Sheriff to suspend the sale from day to day until the hearing, when the following facts were found:

1. That the defendant, George Little, made to the plaintiff his promissory note on the 10th day of April, 1874, for the principal sum of two hundred dollars, with interest at eight per cent, payable one d; y after date.

2. That a summons wí s issued by a Justice of the Peace, against the defendant on the 18th day of April,-1874, who accepted service and confessed judgment on the same day, according to specialty filed. That said judgment was stayed by giving the defendant, IIe ry Mordccai as surety. .

3. That a transcript of said judgment was sent up to the Superior Court and docketed on the 19th of June, 1875. Said docket shows that the judgment was for two hundred dollars, and interest from the 10th day of April, 1874, at 8 per cent. The transcript is for two hundred dollars, and interest from the 10th of April, 1874.

4. The execution issued by the Superior Court Clerk on the 19th day of June, 1875, was for the principal sum of two hundred dollars, with interest from the 10th day of April, 1874, at 8 per cent.

Upon these facts his Honor refused the motion, and thereupon the defendants appealed.

Jones (É Jones, for the appellants.

A. M. Lewis, contra.

Settle, J.

The defendant’s appeal rests upon the'idea that there is a variance between the judgment rendered by the magistrate and the one docketed in the office of the Superior Court Clerk, when, in fact, though expressed in words somewhat different, they mean precisely the same thing. The defendant contends that the Justice’s judgment implies interest at six per cent. only. But of course his judgment, giving “interest from 10th day of April, 1874,” upon a note which, specified on its face that it should bear interest, at eight per •cent. pur annum, could mean nothing else than interest at eight per cent; and when the Clerk, in docketing the Justice’s judgment, which was taken by confession, according to specialty filed, added the words “at eight per cent.” he did not,, in the least degree, change the sense or the legal effect of the Justice’s judgment.

The judgment of the Superior Ccmt is iffirmed.

There are four other otes lchutn tl t tin e parties, and involvirg the tin e part, l<fot vs tt tl is tom. Let judgment be cutocd in all in ttriem ity to tl is pinion.

Pee Cueiam. Judgment affirmed.