Garner v. . Quakenbush

Clark, C. J. Tbe court, upon tbe bearing properly refused tbe motion to set aside tbe judgment for excusable neglect as to Quaken-busb, and beld tbat there was not any meritorious defense shown. Mauney v. Gidney, 88 N. C., 203; Stockton v. Mining Co., 144 N. C., 595; McLeod v. Gooch, 162 N. C., 122; Cahoon v. Brinkley, 176 N. C., 5. It is contended tbat in four months' after tbe judgment Quakenbusb was adjudged a bankrupt. Section 67 E of tbe Bankrupt Act, relied on by Quakenbusb’s trustee, has reference only to liens obtained by judgment within four months. Tbis was a judgment on a valid mortgage made more than four months before tbe bankruptcy, and was valid against tbe trustee in bankruptcy unless tbe plaintiff bad obtained an undue advantage thereby over tbe other judgment creditors. Tbe defendant is estopped to deny tbe validity of tbe mortgage, but against tb'is, nothing is alleged or shown as to Garrett. “Tbe liability of a person who is codebtor with, or guarantor, or in any manner a surety for a bankrupt is not altered by tbe discharge of sucb bankrupt.” Love-land on Bankruptcy, sec. 296. Garrett, being a codebtor, is not discharged by tbe bankruptcy of Quakenbusb. Murray v. Bass, 184 N. C., 318. It is contended, however, tbat tbe judgment should have been by default and inquiry and not by default final. In Jeffries v. Aaron, 120 N. C., 167, where there was a similar motion made, tbe court beld tbat there being (as in tbis case) no ground to sustain tbe motion upon tbe allegation of mistake, surprise or excusable neglect, it could not be modified upon tbe ground of irregularity, saying: “Tbe court having jurisdiction of tbe subject and tbe parties, there is a presumption in favor of its judgment, and tbe burden of overcoming tbis presumption is with tbe party seeking to set aside tbe judgment. He must set forth tbe facts showing prima facie a valid defense, and tbe validity of tbe defense *606 is for the court and. not for the party. Although there was irregularity in entering the judgment, yet unless the court can now see reasonably that defendants had a good defense, or that they could now make a defense that would affect the judgment, why should it engage in the yam work of setting the judgment aside now and then be called upon soon thereafter to render just such another between the same parties? To avoid this the law requires that a prima facie valid defense must be set forth. Jarman v. Saunders, 64 N. C., 367; English v. English, 87 N. C., 497; Mauney v. Gidney, 88 N. C., 200.” It is true that in Currie v. Mining Co., 157 N. C., 220, it is said that, if the amount for which the defendant is liable was not certain, the plaintiffs were not entitled to judgment by default final, and such judgment would be irregular, but, the judgment having been rendered, Walker, J., said, in Harris v. Bennett, 160 N. C., 347: “Unless the Court can now see reasonably that the defendants had a good defense, or that they could make a defense that would affect the judgment, why should it engage in the vain work of setting the judgment aside?” citing Jeffries v. Aaron, supra; Cherry v. Canal Co., 140 N. C., 423; Williamson v. Hartman, 92 N. C., 236. This is repeated in Hyatt v. Clark, 169 N. C., 178, where the Court held": “Although there was irregularity in entering the judgment, yet, unless the Court can now see, reasonably,” etc., as above quoted from Jeffries v. Aaron. In Land Co. v. Wooten, 177 N. C., 250, the Court repeats the same quotation and the above citations, and says: “Why should the Court set aside the judgment unless its appears affirmatively that there is a meritorious defense ?” And in the still later case of Montague v. Lumpkins, 178 N. C., 270, the Court says: “It is equally well settled that a judgment by default will not be set aside unless facts are'alleged which, if true, would establish a defense,” citing Jeffries v. Aaron, supra, approved in Miller v. Smith, 169 N. C., 210, and in other cases. • The Court, in this case, has properly found that there was no ground to set aside the judgment for excusable neglect, surprise, or mistake. There is neither allegation nor proof upon that ground, and, if there had been, in its. discretion the Court could have still declined to set it aside. The final judgment was regularly entered against Quakenbush on the note and mortgage. The contract of Garret on the replevin bond was for the return of the team, or their value, and the final judgment against him should not be reopened and modified by the judgment of default and inquiry but for the fact that he alleges that the value of the team, subject to prior mortgages under which they were seized and have been sold, did not equal the amount of the judgment. It was error in the court to refuse to permit him to offer evidence to that effect, and for *607 this reason be is entitled to have tbe judgment modified into one by default and inquiry, and evidence introduced to this effect. As to tbe defendant McPherson, trustee in bankruptcy, tbe judgment is valid as to tbe lien of tbe mortgage, wbicb was executed more than four months prior to tbe bankruptcy; and as to what extent tbe judgment shall otherwise share in tbe proceeds of tbe bankruptcy in bis bands is a matter to be adjudged in tbe bankruptcy court. As to him and tbe principal, Quakenbush, the judgment below is affirmed; and as to tbe defendant Garret, it will be modified into a judgment by default, and inquiry only in order that tbe value of tbe team, for which be is responsible, subject to tbe prior mortgages, shall be ascertained before a jury.^ Modified and affirmed.