Smith v. McClure

ARNOLD, Judge. The primary question presented by this appeal is whether plaintiffs were entitled to judgment against defendant’s surety. In Pickelsimer v. Glazener, 173 N.C. 630, 636, 92 S.E. 700, 703 (1917), the North Carolina Supreme Court said: “Our statute provides that when an action is brought for the recovery of a debt contracted by fraud, and the jury find the fact of fraud, the plaintiff as creditor, may take judgment for his debt against the defendant, as his debtor, and execution shall then issue against the latter’s property. If it is returned “Nulla bona” (no goods or chattels, etc.), and the defendant has given bail in the action, and is at large, an execution may issue against his person. If this writ is returned “Non est inventus” (not to be found, etc.), the plaintiff may then move, on ten days notice, for judgment against the bail. The latter may then answer and set up any defense open to them, such as death of the principal, a legal surrender of him, release or discharge of him or them, or any other matter which if found to exist, will entitle them to an exoneration.” See G.S., chap. 1, art. 34. The record shows, and the trial court found, the following: appellant Glenn executed a bond as surety for defendant McClure; plaintiffs recovered a judgment against McClure; executions against the property and person of McClure were issued and returned unsatisfied by the Sheriff of Wake County; Glenn had not been exonerated by McClure’s death, imprisonment, or legal discharge; Glenn had not surrendered McClure to the Sheriff; and Glenn was given ten days’ notice of the proceeding against him. These facts are clearly sufficient to support an order holding the surety liable. Appellant’s contentions, that plaintiffs should first have attempted execution against both defendants and that plaintiffs [283] were guilty of laches, are without merit. Donald McClure was the only principal on whose undertaking Glenn was obligated. See generally Jackson v. Hampton, 32 N.C. 579 (1849). Plaintiffs proceeded against the bail within three years, the statutory period under G.S. 1-52(7), after obtaining judgment against the principal. No change in the relations between the parties resulted from the lapse of time. See Teachey v. Gurley, 214 N.C. 288, 199 S.E. 83 (1938). Glenn’s interest was adequately protected and he was liable on the bond. With respect to appellant’s motions under Rule 60, we note that, as bail, Glenn had no standing to object to the arrest or summary judgment against the defendant. The surety is liable for any breach of the bail bond obligations. G.S. 1-436. The defendant may be legally discharged in several ways, including an order under G.S. 1-417 to vacate the arrest or a decision on the merits, and such discharge exonerates the bail. G.S. 1-433; 2 McIntosh, N. C. Practice 2d, § 2069. But the bail has no right other than to defend an action on the bond on grounds of legal discharge, death, surrender or imprisonment of the principal. Id. Moreover, the trial court correctly ruled that, pending the surety’s appeal from judgment on the bond, it was without jurisdiction to entertain motions in the cause. Wiggins v. Bunch, 280 N.C. 106, 184 S.E. 2d 879 (1971). The orders from which the surety has appealed are affirmed. Affirmed. Chief Judge Brock and Judge Parker concur.