McNeill v. Railroad

Walker, J., after stating the facts: The question in this case is whether the plaintiff is entitled to interest on his judgment, nothing being said therein about interest. The contention of the defendant is that while by Section 530 of The Code it is provided that a judgment shall bear interest until paid, in order to do so it must be expressly stated in the judgment that it bears interest, by reason of the concluding words, namely, “and the judgment and ‘decree of the court shall be rendered according to this section.” In construing these words it is our duty to try to get at the real intention of the legislature by carefully attending to the phraseology of the entire section. We must ascertain the relation of the provision in the clause we have quoted to the general object intended to be secured by the Act and determine whether that provision is mandatory or merely directory. “Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and prompt conduct of the business, and by the failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory, and if the act is performed, but not in the time or in the precise mode indicated, it will still be sufficient, if *3 that which is clone accomplishes the substantial purposes of the statute.” 2 Sutherland Stat. Const. (Lewis) Sec. 611. The principle is aptly stated in Sedgwick oh Statutory & Constitutional Law (1857) 368, as follows: “When statutes direct certain proceedings to be done in a certain way or at a certain time, and a strict compliance with these provisions of time and form does not appear essential to the judicial mind, the proceedings are held valid, though the command of the statute is disregarded or disobeyed. In these cases, by a somewhat singular use of language, the statute is said to be directory. In other cases, the statute is held to be imperative or mandatory.” Tested by • either statement of the rule, we think the statute under consideration is directory so far as it provides that the judgment must itself state that it shall bear interest from the date of rendition until it is paid. It is perfectly clear that such a statement in the judgment is not essential to effectuate the intent of the legislature, which is to allow interest on judgments. If the amount of the principal is fixed, the statute provides that it shall bear interest, and everything is already stated in the judgment necessary to carry out this leading object of the statute. If it was further stated that it should bear interest until paid, this would be saying no more than the law already provides. The insertion of the statement therefore is not essential, and the main intention will not be defeated by its omission. It is best always that the court in its judgment should state fully the amount to be raised by the execution, both principal and interest, but the plaintiff will not forfeit his right to interest by the failure to do this, when enough appears on the face of the judgment to enable the officer to compute the amount justly due. All he is required to know is the amount of the_ principal, and then the statute makes that amount bear interest to the time of payment. In Deloach v. Worke, 10 N. C., 36, this court says: “The *4 evident design was to allow tbe plaintiff interest on tbe principal sum recovered in a judgment from tbe time of its rendition; and tbe direction to tbe jury to distinguish between tbe principal and interest was intended to provide for those cases in which the whole sum is assessed in damages, so as to enable tbe clerk or tbe sheriff to compute tbe interest on tbe principal sum. But where tbe principal and interest are discriminated on tbe record, or it can be collected from an inspection of it what tbe principal sum was, it is equally within tbe spirit of tbe act that interest should be calculated on that.” At common law a judgment did not carry interest when an execution or sci fa was issued upon it. ' In an action upon tbe judgment tbe plaintiff could recover interest by way of damages for the detention of tbe money. The statute was passed for the purpose of amending the law in this respect. Collais v. McLeod, 30 N. C., 221. Tbe intent was that principal should bear interest in this case as in all others, because it was just and right that it should, and that tbe technical rule of tbe common law should not longer stand in the way. Tbe sole purpose was to have it appear on the record what sum will carry interest after judgment. We would be insisting too much on tbe letter instead of tbe spirit of the statute if we should bold otherwise. Deloach v. Worke, supra. Tbe views we have expressed are supported by decisions of this court other than those already cited. Farmer v. Willard, 75 N. C., 402; Long v. Long, 85 N. C. 415. In neither of those cases was there any statement in the judgment that it carried interest. The court held that the judgments bore interest by virtue of the express provision of the statute to that effect. See also McRae v. Malloy, 81 N. C., 196. In Amis v. Smith, 16 Peters, 311, tbe court says: “We can see no good reason why interest upon a judgment, which is secured by positive law, is not as much a part of the judgment *5 as if expressed in it.” Language almost identical was nsed in State v. Vogel, 14 Mo. App. 189: “In order,” says tbe court, “that tbe judgment should bear interest, it was mot necessary tbat tbe court delivering tbe judgment should say so and make this statement a part of the judgment, because tbe statute provides'tbat every judgment shall bear interest.” Rhodes v. Vaughan, 9 N. C., 170, 111. While, as we have substantially' said, it is best always to follow established precedents and tbe directions of tbe law in drawing judgments, yet strict observance of a prescribed .formula is not absolutely essential to save a right expressly given by‘statute, if a party is otherwise entitled to it, and tbe court is enabled from what does appear in tbe judgment to determine tbe right and to enforce it by its process. Lewis’ Sutherland Sec. 610, et seg. Besides, as tbe provision is expressed affirmatively, there being no negative words to indicate tbat tbe legislature intended non compliance to work a ■forfeiture, tbe general rule is tbat in such a case tbe provision is merely directory. Sedgwick, supra, 370. We cannot think the legislature intended an insertion of tbe statement tbat tbe judgment carried interest should be indispensable to its recovery. As tbe payment was by tbe law applied first to tbe interest accrued and then what was left to tbe principal, a balance was due on tbe judgment. Tbe court was therefore right in ordering execution to issue for tbe amount due. No Error.