State Ex Rel. Battle v. Baird

*860 Furches, J.: This is an action on the official bond of E. W. Herndon, clerk of the superior court of Buncombe •county. At the trial plaintiffs offered in evidence the register’s books of Buncombe county, containing what purported to be the official bond of said Herndon as clerk, signed by himself and the other defendants, as his sureties. This was objected to and ruled out by the court, and plaintiffs excepted. Plaintiffs then produced the original, •and proved the signatures of each of the defendants, and then offered this in evidence. But this was also objected to by defendants and excluded by the court, and plaintiffs again excepted, submitted to a non-suit aud appealed. This constitutes the case on plaintiffs’ appeal. There are no reasons assigned in the record of this appeal for the objections to the introduction of this evidence, nor why it was ruled out; and after a thorough examination we find no authority for the ruling of the court. A clerk of the superior court holds a high and responsible public office, and one that he cannot hold without •entering in to bond as required by law. Code, Sec. 72. This being so, it will be presumed that he did so, and any such bond found in the keeping of the proper custodian will be presumed to have been properly given and accepted as ■such. Kello v. Maget, 18 N. C., 414. And if necessary it may be proved as at .common-law, without even being subject to the strict rules of evidence. Where there is a •subscribing witness, it may be proved by other witnesses, as if there was no subscribing witness. Short v. Currie, 8 Jones, 42. This is allowed upon the grounds of public policy. But it is not necessary that we should pursue this line of proof further, as it was clearly admissible as a registered bond. The register of deeds was authorized to take the acknowledgment of this bond and to register the same. Code, Sec. 73. It being of such public importance *861 that official bonds should be preserved, the Legislature provided for and required that they should be registered, as. an additional means of preserving this evidence, in which the public was interested. And as this was the clerk’s, bond, he could not pass on the same and admit it to probate, being a party interested. White v. Connelly, 105 N. C., 65; Turner v. Connelly, Ibid., 74. So, the Legislature authorized the register of deeds, and ex-officAo clerk of the board of commissioners, whose duty it was to pass upon and accept the clerk’s bond, to take the acknowledgment and probate, and register the same. Code, Sec. 73, supra. The bond being authorized to be registered, the “ registry ” or register’s books containing this registered bond, was competent evidence and should have been admitted. Code, Sec. 1251. Having considered the plaintiffs’ appeal, we come to the consideration of defendant Luther’s appeal. He contends that he was not in court, and therefore no judgment could be taken against him; that the summons against him purports to be an alias summons, when in fact it was not, and therehadbeenno alias ordered at the J une term of the court; that this broke the connection with the original order of alias summons. This is true — that it broke the connection —and it could not relate back beyond its date. Etheridge v. Woodley, 83 N. C., 11. But still it was a summons returnable to August term, upon which he acknowledged service more than ten days before that term. It has been several times held by this Court th at the only purpose of the summons is to bring the party into court — to notify him that there will be a complaint filed against him at the return term. The summons under The Code in no way indicates the cause of action. That is to be learned from the complaint. In this it differs from the writ under the old practice, *862 which did to some extent indicate the plaintiff’s canse of action. The defendant Luther, according to all the authorities that we know of, mast be held to have been brought into court at August term, 1888, and at this term an amended complaint was filed in the action, by leave of court, in which he is named as one of the defendants. Another objection of this defendant to his being in court is, that this summons was issued to the coroner and not to the sheriff of Buncombe county. There is more than one reason why this objection cannot be sustained. The first is that it is a summons — a notice to this defendant — to be at court at August term; that the plaintiff will file a complaint against him at that time. And he accepts this notice. The coroner has nothing to do with it. By his owrn act he puts himself in court. But another reason is that the law requires the coroner to act when the sheriff is a party. Oode, Sec. 658. The coroner having the right to act, it will be presumed that he acted properly, until the contrary is shown, if he had served the summons. But in this case it appears from the affidavit, of defendant Luther that one of the defendants (W. J. Worley) was sheriff of Buncombe county, and the first summons, as well •as this, was issued to the coroner. It must therefore be held that defendant Luther was in court from and after August term, 1895. But he filed no answer for the reason, as he says, that he had a conversation with his co-defendants, and agreed to bear his part of counsel fees to defend the action ; that they agreed to attend to the employment of attorneys, and he thought they had done so, and for that reason he gave the matter no further attention. This would seem to be somewhat inconsistent with his other defense, that he was not even in court. But to give him the full benefit of the statements contained in his own affidavit, as the court did *863 not find the facts, as we think it should have done if defendant requested it, instead of making the affidavits a part of the case on appeal, still, it cannot benefit the defendant. Bank v. Foote, 77 N. C., 131. And while we cannot allow the defendant to have the judgment set aside upon the ground of inexcusable neglect, we feel bound to set it aside upon the ground of its being irregularly taken, contrary to the statute and the practice of the court. It is not such a final judgment as is provided for in Section 385 of The Code, hut could only be a judgment by default and inquiry under Section 386, which cannot be executed until the next term. It therefore follows from what has been said that the judgment of non-suit must be set aside and a new trial had, and that the judgment against the defendant Luther must be set aside and the case proceeded with according to law against all the defendants in court. . It was suggested on the argument here that the bond declared on did not cover the demand in plaintiffs’ complaint, for the reason that it said from and after “the 1st day of August, 1878.” This question was not and could not have been before the court below for judicial determination, as the court held that the bond was incompetent evidence, and did not allow it to come before the court, and therefore could not judicially construe a bond which was not before the court for construction. Nor does it appear from the record that the court did so. Nor can we say that the record presents this question for our determination. But, as it was called to our attention and argued, and as the same question may be presented on a new trial, we think it proper for us to intimate our opinion now. Therefore, if it shall appear on the new trial that Hern-don was elected clerk in 1884, gave this bond, and was *864 inducted into office, and served as clerk, he and his sureties would be liable. This would show that this expression, after “the 1st day of August,T878,” was an inadvertence, or that it was an attempted fraud on the public, neither of which will be allowed to defeat public justice. We suppose it was an inadvertence, caused from copying from a bond of a former date. If Herndon is shown to have been elected and inducted into office in 1884, this explains the bond, and this inadvertence may be treated as stricken out, or as surplusage, and the bond be good. Sprinkle v. Martin, 69 N. C., 175; Kello v. Maget, supra. There is error. This will be certified that the action may be.proceeded with as pointed out in this opinion. Error. CnARK, J., did not sit on the hearing of these appeals.