State Ex Rel. Anthony v. Estes

Smith, C. J. (after stating the case.) While not material in disposing of the appeal, lest our silence should be misconstrued, we pause to say that the judgment should be as defendants insist: for the penal sum mentioned in the bond to be discharged, upon the payment of the damages aforesaid, with interest on the principal from -the first day of the term, and costs. A form will be found in Mr. Eaton's excellent collection of Forms, at pages 282 and 283. Moreover, in an action on the bond the damages recoverable cannot exceed the penalty, which alike measures the damages to be adjudged against the principal as against the sureties. This necessarily results, from the fact that jks an obligation it is. the same as to all the obligors. The judgment can be in this respect reformed, and the excess in the damages assessed by the jury disregarded. We pretermit an examination of the numerous exceptions taken during the progress of the trial to notice the-rulings upon the question of damages and the evidence offered and passed on pertinent thereto. It is apparent that the presiding Judge considered all the-averments of fact made in the unanswered complaint as in-contestible upon the inquiry of damages, and therefore the jury were left only to ascertain the value of the plaintiffs’ shares in the lost lands, assuming the defendants’ failure to answer as an admission of the truth of all the allegations,, and among them the culpable negligence of the defendant-, *546 guardian in not resisting and defeating the sale. This view, in our opinion, gives a larger scope and efficacy than what belongs to a judgment by default and inquiry. It does, indeed, conclusively determine the defendants’ liability, expressed in the technical words, “quod recuperet”; but it leaves open the inquiry as to the damages to which a party is entitled, and, in the absence of any showing as to the amount, must be for a sum merely nominal. This will be seen by a reference to some of our own adjudications on the point. In Parker & Gatling v. Smith, 64 N. C., 291, upon a judgment by default and inquiry in an action to recover for goods sold and delivered, it was held in the Superior Court that, although the defendant could contest the amount of damages, he was estopped by the judgment from disputing the delivery of the articles. This was declared to be error, this Court saying: “ In actions where the measure of damages is-to be given by the jury, the assessment must be made upon the proofs introduced by each party, and the onus of proof as to the amount of damages is upon the plaintiff, as a judgment by default .admits something to be due, but not the amount.” In Parker v. House, 66 N. C., 374, the action was upon a (Constable's bond, and the plaintiff alleged a breach in that :the officer had not used due diligence in endeavoring to collect certain claims placed in his hands, setting them out specifically and in detail The plaintiff read his complaint .-.and the officer’s receipt of the claims which he undertook to -collect, and then stopped. After verdict and judgment for ..the plaintiff, and upon the defendant’s appeal, this Court said: “The breach of the official bond assigned in the complaint is, that the defendant did not u-e due diligence in collecting claims put into his hands as an officer. The defendant, by failing to- answer, admits this allegation, but does *547 not admit the amount of damages, for this is the question to be determined upon proofs.” Of like import are Wynne v. Prairie, 86 N. C., 73, and Rogers v. Moore, 86 N. C., 85. Applying this statement of the law and practice to the facts before us, the defendants’ default admits the sale of the land, the guardian’s failure to put in any defence when he ought to have done so, but how much damage has resulted therefrom is not determined by the facts, and it would be competent to prove that debts were extinguished to a large amount, for which the land was liable. The rejected record of further proceedings in the administrator’s suit was of papers in the Clerk’s office on file in the said suit, and purports to be part thereof. Their production from the source where they were found, and their obvious connection with the papers introduced by the plaintiffs, as well as their contents, tend to show their genuineness as parts of the record, and their admissibility did not depend upon other external proof of their relations to the cause, nor upon a failure to suggest other grounds for their reception than their bearing upon the quantum, of damages. One of those papers professes to be a final settlement of the administrator with the Probate Judge, under a prefix of the name of the cause, copied from the record of settlement, from which it appears that the administrator is charged with $812.06, proceeds of the sale of the chattel property, and $1,369.15 realized from a sale of land, aggregating $2,181.21, from which has been disbursed $2,029.83, leaving in his hands $151.58 We see no sufficient reason for withdrawing this record evidence of the disposition of the personal and real estate from the hearing of the jury, as it does bear materially upon the measure of damages, and tends to show the extent of the real interest of the plaintiffs in the lands; for it is only where the intestate’s debts have been *548 paid and subject thereto that the legal esbite descended to the heirs-at-law.. We think there was error in disallowing this evidence to go to the jury for the alleged want of authenticity and supposed irrelevancy to the issue, for which-the judgment must be reversed and a new trial awarded. Error.