Carter v. Colman

• Decision Date: 31 August 1851
• Citation: 34 N.C. 274,12 Ired. 274
• Court: North Carolina Supreme Court
• Parties: ________ CARTER et al v. ________ COLMAN et al.

12 Ired. 274

34 N.C. 274

________ CARTER et al

v.________ COLMAN et al.

Supreme Court of North Carolina.

August Term, 1851.

Where there is a dormant jndgment, the plaintiff may have a scire facias to revive, and an action of debt to recover, the amount of the judgment, both pending at the same time; and a judgment on the scire facias cannot be pleaded in bar of the action of debt.

Appeal from the Superior Court of Law of Buncombe county, Special Term, July, 1851, his Honor Judge BAILEY presiding.

In 1842, the plaintiffs recovered a judgment in debt against the defendant, which became dormant. In 1847, they sued out a scire facias to revive, which was served. In October, 1849, they brought debt on the judgment to March Term, 1850, in the same Court; and at that Term, the defendant confessed judgment on the scire facias, and pleaded the same in bar of the action in debt. Upon these facts, as a case agreed, it was submitted, whether the plaintiffs were entitled to judgment or not; and, after a decision for the plaintiffs, the defendant appealed.

N. W. Woodfin, for the plaintiff .

Gaither and J. Baxter for the defendant .

RUFFIN, C. J.

The judgment on the scire facias is, that the plaintiff have execution on his original recovery, and nothing more, except as to the costs. It is not at all inconsistent, that the creditor should also have another judgment to recover the debt, and it cannot prejudice the defendant, as they are but different securities for the same debt, and satisfaction of either would be satisfaction of both judgments. A plaintiff may sue on a judgment, on which he may at the time have execution; and, indeed, the purposes of justice may sometimes require it, as it may be necessary to the recovery of interest on a judgment for damages, or, as in this case, to obtain new bail, after the discharge of the former bail, under the statute of limitations. The debtor can always defeat a disposition to oppress him with costs by paying the debt.

PER CURIAM. Judgment affirmed.