Nimocks v. . Pope

Furches, J.: This was a motion made at May Term, 1895, to set aside a judgment rendered at May Term, 1894, of the Superior Court of OumbeklaND County. The judgment which the court is asked to set aside was rendered in an action pending in the Superior Court for debt secured by a chattel mortgage, in which proceedings in claim and delivery had been sued out for a part of the property secured by the chattel mortgage, and two mules were seized by the sheriff, which the defendant Pope replevied by entering into bond in the sum of $400 with the defendant Hodges as surety. At May Term, 1894, the plaintiff and defendant Pope entered into a compromise and judgment was entered thereon, signed by counsel for plaintiff and defendant, for the sum of $275. There is no allegation of fraud, but defendant alleges that the judgment is irregular for *319 tbe reason it was taken against bim wben he was not a party of record, and for the reason that it is a conditional judgment, and cites Strickland v. Cox, 102 N. C., 411, for this position. But upon examination wc find this not to be a conditional but an absolute judgment. It is true the judgment contains an agreement of counsel that if Pope will file two well secured notes amounting together to the amount of the judgment by a certain time, plaintiff will take them as payment instead of requiring the money, and will mark the judgment satisfied. But this does not make it a conditional judgment. Plaintiff only agrees to take other payment in satisfaction, than money, if defendant wished to pay in this way. But defendant could have satisfied it at any time with the money. So Strickland v. Cox does not apply. The defendant’s other ground is equally untenable. Hodges was bound for the return of the property and for the damage sustained by plaintiff on account of the detention and deterioration. And it must be presumed that these matters were considered in the compromise, and when they speak of interest they considered that the equivalent for detention. But be that as it may, the defendant Hodges by signing Pope’s bond as surety and' thereby taking the property out of plaintiff’s possession, in law made Pope his agent to compromise plaintiff’s claim for damages; and upon Pope’s doing so the court was authorized to enter tip judgment against Pope and the defendant Hodges upon his bond. Council v. Averett, 90 N. C., 168; Robbins v. Killebrew, 95 N. C., 19 and 24; Harker v. Arendell, 74 N. C., 85; McDonald v. McBryde, at this term. There is nothing that Hodges could complain of, that the two mules were surrendered up, after this judgment, and after the time had expired in which he might have satisfied the judgment by filing the two notes, and were sold (admitted *320 fairly) and the proceeds of sale applied in part payment of plaintiff’s judgment. Defendant ITodges has shown no ground for setting aside and vacating the judgment against him. Stump v. Long, 84 N. C., 616; McDonald v. McBryde, supra. The judgment appealed from is affirmed. Affirmed.