Davenport Morris v. . Leary

SMITH, C. J. (after stating the facts). The plaintiffs’ judgments, rendered by a justice of the peace, were docketed in the Superior Court, on the 20th day of August, 1884, while the others, confessed before the Clerk of the Superior Court of Chowan, were put upon the docket the day previous, would have priority, if effectual and sufficient as judgments. The ruling assumes them to be invalid, and hence this is the only question to be determined in the appeal. The Code authorizes the entry of a judgment by confession, in or out of term, in the manner, and subject to the conditions mentioned in Section 571 and those succeeding. Among them it provides that when the claim is for money due, or to become due, there must be a statement in writing, verified by the oath of the debtor, of “the facts out of which it arose, and must show that the sum confessed therefor is justly due or to become due.” The affidavits accompanying both judgments fail to show for what the debts were contracted, or the facts out of which the liabilities arose. *208 They simply aver that the debts are bona fida due, and truly owing to the named creditors. It is true an account rendered accompanies each, and is filed among the papers, but they are not embraced in the affidavits so as to assure their correctness with the superadded sanctions of the debtor’s oath, which the statute makes essential to the proceedings. The case cited in the brief of plaintiffs’ counsel, Alexander v. Davidson, 84 N. C., 621, is an adjudication decisive of the question, and the clear and conclusive argument contained in the opinion leaves us nothing to say in its support. A preliminary motion was made by appellants’counsel to dismiss the appeal, because the undertaking is not in the sum prescribed by law, nor has any other sum been fixed by the Court,, which motion was afterwards withdrawn ; and further to affirm the judgment, for the reason that no specific errors are assigned. This motion is overruled. An error is sufficiently assigned in an appeal from the ruling as to the law upon an agreed state of facts, by the party against whom the ruling is made. What greater particularity can be required ? The issue is joined by the adverse contentions as to the law arising upon the facts, and an appeal from an adverse decision distinctly presents it for reviewal. This is a compliance with the rule. There is error, and the judgment must be reversed and judgment entered here for the contesting creditor-plaintiffs. The appellees will pay the costs of the appeal. Error. Reversed.