Speight Box & Panel Co. v. Ipock

Barnhill, J. The plaintiff is entitled to a judgment against the sureties on the defendant’s undertaking according to the terms of the instrument, to be recovered in the original action. The sureties, within the limits of their obligation, are considered parties of record, and the defendants their principals. McDonald v. McBryde, 117 N. C., 125, 23 S. E., 103; Wallace v. Robinson, 185 N. C., 530, 117 S. E., 508; Trust Co. v. Hayes, 191 N. C., 542, 132 S. E., 466; Long v. Meares, 196 N. C., 211, 145 S. E., 7. It is upon this theory that judgment against the sureties is rendered in the original action to the end that the whole controversy may be adjusted at once. • Ordinarily, the sureties are not prejudiced until judgment is rendered. Except in case of fraud, Wallace v. Robinson, supra, a surety upon a replevin bond may challenge his liability for that he did not in fact sign the bond, or for other cause, by motion in the original action. Long v. Meares, supra; Nimocks v. Pope, 117 N. C., 315. Rut if he signed the bond he may not deny liability on the merits of the original contro *377 versy. He is bound even by a judgment consented to by defendants. Nimocks v. Pope, supra; Wallace v. Robinson, supra; Long v. Meares, supra. Tbe movant was permitted to appear in tbe original action and to file a motion to strike bis name from tbe replevin bond for tbe reason be never signed or authorized tbe signing of tbe same prior to judgment. Tbe issue raised by the motion was submitted to a jury upon tbe evidence •offered and was answered in bis favor. Tbe court, as it bad a right to ■do, set tbe verdict aside. But in so doing it did not order a new trial ■on tbe issue. Instead; it proceeded to judgment not only against tbe principals but against tbe appellant as well. This was done notwithstanding tbe fact that tbe issue raised by tbe motion was still pending .and undetermined. Tbe movant is liable upon tbe judgment rendered only in tbe event that be signed tbe replevin bond or authorized someone else so to do in bis name, place and stead. He has raised, by proper procedure, an issue as to bis liability upon tbe judgment rendered. Tbe court was without authority to bear and determine tbe facts in respect thereto. Even if it be conceded that tbe motion was prematurely made judgment has now been entered and tbe court adjudged bis liability while bis motion was pending. A substantial right is thereby affected and if tbe judgment is affirmed as against him, upon tbe present record, be may be precluded hereafter from litigating tbe question presented. Tbe appellant is entitled to bis day in court and upon tbe issue raised be is entitled to a trial by jury. If it shall be determined that be in fact signed tbe bond, then tbe plaintiff is entitled to judgment against him as against tbe principals. Under tbe circumstances presented on this record we are of tbe opinion that bis appeal from tbe judgment to which be duly excepted is not premature. As to O. I). Heath, on the question of bis suretyship upon tbe bond, there must be a New trial.