Dalton v. Strickland

CONNOR, J. The question presented by this appeal is whether a payment made by a judgment debtor to the clerk of the Superior Court in whose office the original judgment is docketed, on the judgment, is good and available to the party making the payment, and against the owner of the judgment, where the clerk has failed to enter the payment on the judgment docket, as he is required to do by the statute. C. S., 617, is as follows: “The party against whom a judgment for the payment of money is rendered by any court of record may pay the whole, or any part thereof, to the clerk of the court in which the same was rendered, at any time thereafter, although no execution has issued on said judgment; and this payment of money is good and available to the party making it, and the clerk shall enter the payment on the judgment docket.” We are of opinion that where a payment has been made as authorized by the statute, such payment is good and available to the party making it and against the owner of the judgment, although the clerk fails to enter the payment on the judgment docket. It is the duty of the clerk, as provided by the statute, to enter the judgment on the judgment docket, and both he and the surety on his official bond are liable to the owner of the judgment for any loss which such owner has suffered by reason of the failure of the clerk to perform his statutory duty, or to account to such owner for the payment. The statute imposes no duty on the party making the payment to the clerk to make or to require the clerk to make an entry on the judgment docket. The effect of the statute is to make the clerk the statutory agent of the owner of the judgment, and not of the party making the payment. [31] The third question presented in Gilmore v. Walker, 195 N. C., 460, 142 S. E., 579, was correctly decided on the facts in that case. That decision is not an authority in support of the judgment in the instant case. In that case the judgment debtor had paid the amount of the judgment which was docketed against him, and was a lien on his land, to the clerk of the court, who failed to enter the payment on the judgment docket or to account to the judgment creditor for the amount of the payment. The judgment debtor paid the amount of the judgment to the judgment creditor, who thereupon canceled the judgment. This left in the hands of the clerk the sum of money which the judgment debtor had paid him under the provisions of C. S., 617. The judgment creditor, whose judgment had been paid by the judgment debtor, was manifestly not entitled to the money. On these facts it was correctly decided that the judgment debtor was entitled to the money, and that both the clerk and the surety on his official bond were liable to him. In accordance with this opinion, the judgment in this action is Eeversed.