Bank of North Wilkesboro v. Wilkesboro Hotel Co.

CoNNOR, J. This proceeding lias had a long and tedious journey through the court, coming to ns in a somewhat different aspect from that in which it began its career. The original notice to defendant company was evidently intended as a basis for a motion for leave to issue execution pursuant to section 620, Revisal. The difficulty with which the surety, Gennings, was confronted consisted in the fact that upon payment by him of the execution in 1895 the judgment was can-celled and satisfied. In Sherwood v. Collier, 14 N. C., 380, it is held that the payment by the surety of the judgment against the principal and himself cancels it as to both. If the surety wishes to keep it in force he must have it assigned to a stranger for his benefit. In Peebles v. Gay, 115 N. C., 38, all of the cases are cited by MacBae, J., .and the conclusion thus stated: “It was early laid down by our Court that the only Avay for a surety to preserve the lien of the judgment against his principal in his own favor was, upon payment by him of the sum, to have the judgment assigned to .a trustee for his use. If he permitted the judgment to be satisfied without any assignment the remedy of subrogation is lost.” So, in Briley v. Sugg, 21 N. C., 366, it is held that an assignment to the surety who pays the judgment against his principal and himself operates as a payment. Daniel, J., says: “Notwithstanding the plaintiff did not intend to extinguish the judgment by paying Anderson the amount, yet in a court of law and in a court of equity it would have that effect.” Hodges v. Armstrong, 14 N. C., 253. It is held by many courts, and Mr. Brandt says it “is the better opinion,” that when the surety does not intend to pay the judgment equity will subro-gate him, without an assignment and remedies of the creditor, by appointing a trustee. Brandt on Suretyship-, sec. 342, and notes. The question is not presented here, because, upon the motion before the Clerk, no equities can be administered. If *599 tbe effect of tbe Clerk’s order is simply to grant leave to issue execution upon tbe judgment it cannot be sustained. There was no valid subsisting judgment upon which an execution could issue. The counsel for Gennings, appreciating the difficulty confronting him, relies upon section 2842, Revisal, and insists that he is entitled to tbe relief therein provided. This section of the Revisal, which was enacted in 11§† .and has been in force in this State since that time, provides: “That any person who may have paid money for or on account of those for whom he became surety, upon producing to the Superior Court or any justice of the peace having jurisdiction of the same a receipt, and showing that an execution has issued and he has satisfied the same, and making it appear by sufficient testimony that he has laid out and expended any sum of money as the surety of such person, may move the court or justice of the peace for judgment against his principal for the amount which he has actually paid, a citation having previously issued against the principal to show cause why execution should not be awarded; and should not the principal show sufficient cause the court or justice shall award execution' against the estate of the principal.” The interpretation of this statute does not appear to have been before this Court. It has been referred to in opinions wherein it is held that it affords a cumulative remedy to sureties, but does not preclude them from equitable remedies. We find that a similar statute exists in other States. AVith the exception of Smith v. Smith, 1 How. (Miss.), 102, it has been held constitutional. The only objection urged against it in that case was that it made no provision for trial by jury of the issues which could be raised. In a later case (Dibrell v. Dandridge, 51 Miss., 55) a statute very much of the same character was before the Court. It was held that, being in “derogation of the common law,” it should be strictly construed, and “the person claiming the benefit of it must bring himself clearly within its pro *600 visions.” Tbe statute provided that the payment of a judgment by the' surety should operate as an assignment. In Pait v. Pait, 19 Ala., 712, Chilton, J., does not question its validity, and holds that the notice given, “although exceedingly informal,” complies with the “substantial requirement of the statute.” The statute in Alabama is substantially like ours. In Ayers v. Lewellin, 3 Leigh (30 Va.), 660, a similar statute was sustained, the only question being its interpretation. They are generally held to be constitutional (Brandt on Suretyship, sec. 782), but are strictly construed. Ib., 783. In Brown v. Wheeler, 3 Ala., 287, it is held that when a statute gives a summary remedy to a surety and no provision is made for notice, the principal is entitled to reasonable notice. We can perceive no constitutional objection to the statute. The liability of the principal to the creditor having been fixed by judgment, the only question open to him on the motion for summary judgment and execution is payment to the surety, or other matter discharging him from liability, or the statute of limitations. We do not see how the proceeding differs in any substantial respect from the motion by the judgment creditor for leave to issue execution after three years from the last execution. Revisa!, sec. 620. Upon that motion the judgment debtor may plead judgment, satisfaction or the statute of limitations. McLeod v. Williams, 122 N. C., 451. While it is true the notice to defendant contemplates the issuing of an execution, it sets out the date and amount of the judgment, the relation of the parties, and that “Gennings has actually paid out and expended said sum of money in payment of said judgment, and that said hotel company has not reimbursed bim for this amount,” etc. The notice fixes a day- — ten days 'after its service — to show cause, etc. It substantially complies with the statute. It was served on the secretary and treasurer of the corporation, as found by the Clerk and by Judge. Winston. The order or judgment recites all the facts required to be found by the statute, and con- *601 eludes-: “It is hereby considered and adjudged by tbe court that S. J. Gennings recover of tbe Wilkesboro Hotel Company tbe sum of $837.12 and cost of tbis proceeding.” Tbe court further adjudges “that judgment heretofore rendered in tbis case is hereby revived, to tbe end that execution may be issued,” etc. Tbis portion of tbe judgment is surplusage and in no manner affects tbe validity of tbe judgment proper. Has tbe Olerk jurisdiction to enter a judgment for tbe recovery of money? 'By section 352, Revisal, it is provided that when jurisdiction or power is conferred or duties imposed, and “tbe words 'Superior Court’ or 'court’ are used, they mean tbe Clerk of tbe Superior Court, unless otherwise specially stated, or unless reference is made to a regular term of tbe court.” It has never been doubted that it was competent for tbe Legislature to confer such jurisdiction upon tbe Clerk. Trial by jury is secured by directing tbe cause to be transferred to tbe civil issue docket for tbe trial of issues of fact raised by tbe pleadings. We can see no good reason for making a distinction between tbe jurisdiction conferred by section 2842 and section 620. It is suggested that tbe statute does not require notice to issue before judgment is rendered. Tbe arrangement of the sentences is peculiar — “a citation having previously issued to show cause why execution should not be awarded.” Reading tbe entire statute, we are of the opinion that these words, properly construed, require notice. If tbis is not a permissible construction, section 877 of tbe Revisal provides that in all cases when a motion is beard upon notice ten days shall be allowed. When a statute confers power upon a judicial tribunal or an administration agency to render judgment or make an order affecting rights of person or property, and no provision is made for notice, tbe court will require a reasonable notice, fixed, as we have seen, at ten days, tbis being tbe time within which a summons is required to be served before tbe first day of tbe term. Certain stockholders of defendant moved tbe Olerk to set aside tbe judg- *602 nrent, setting forth in an affidavit the grounds of the motion. Waiving the question-whether they had a right to make the motion- — whether it should not have been done by some officer of the corporation — we do not find that they set out any defense to the motion for judgment. It does not deny the fact of payment by Gennings of the judgment, or allege that he has been paid the amount. It sets up a default on the part of Milton McNeill in notifying them of the motion or making a defense, but does not aver that he had any defense. It sets out certain facts, if true, which they suggest would make it inequitable for Gennings to enforce the judgment against some of the property of the corporation. This would not constitute any valid defense to his recovering judgment against the corporation. However this may be, we concur with his Honor, Judge Ferguson, that the Clerk “had no authority to set aside the judgment of 12 September, 1901. Maxwell v. Blair, 95 N. C., 317. It will be- observed that, although the Clerk’s order of 4 October, 1901, gave the movers leave to file an answer, they have not done so. If the claim of Gennings was bound by the statute of limitations the defense should have been made by answer. Upon a careful examination of the entire record we concur with his Honor that the order of 4 October, 1901, setting aside the judgment of 12 September, 1901, should be vacated. The judgment is so modified that an execution, when issued, be upon that judgment and not the original judgment, which, as we have seen, has been satisfied by the payment made by Gennings. Modified and Affirmed.