Garner v. Quakenbush

• Decision Date: 17 September 1924
• Docket Number: 425.
• Citation: 124 S.E. 154,188 N.C. 180
• Parties: GARNER v. QUAKENBUSH ET AL.
• Court: North Carolina Supreme Court

124 S.E. 154

188 N.C. 180

GARNER v. QUAKENBUSH ET AL.

No. 425.

Supreme Court of North Carolina

September 17, 1924

Appeal from Superior Court, Moore County; Stack, Judge.

On rehearing. Former opinion reversed, and judgment below affirmed.

For former opinion, see 187 N.C. 603, 122 S.E. 474.

This cause was heard upon appeal from a judgment rendered at the October term, 1923, of the superior court of Moore county affirming the order of the clerk of the superior court of said county, in which he denied a motion by the defendants to set aside a judgment hereinbefore rendered by default final for want of an answer; said motion being based upon allegations that the said judgment was irregular and that the failure of the defendant Quakenbush to file answer to the complaint was due to his excusable neglect. This court affirmed the judgment as to Quakenbush, and modified and affirmed the same as to the defendant Garrett, surety on defendant's undertaking for replevin. See opinion in this case, 187 N.C. 603, 122 S.E. 474.

This action was instituted by the plaintiff to recover of the defendant Quakenbush judgment upon a note dated November 10 1921, for $400, and for the possession of four mules and two horses, described in a mortgage executed by Quakenbush to the plaintiff to secure the payment of the said note. The writ of claim and delivery was issued by the clerk of the superior court of Moore county, and by virtue of the same the sheriff of Alamance county seized the said mules and horses. Thereupon the defendant executed and filed in this action a replevin bond, with penal sum of $1,000, as provided by C. S § 836, with the defendant W. W. Garrett as his surety, and said property was thereupon returned by the sheriff to the defendant Quakenbush.

Thereafter plaintiff having filed his complaint and defendant having filed no answer, judgment was rendered, by the clerk of the superior court of Moore county by default final on February 25, 1922, in which it was adjudged that "plaintiff recover of the defendant J. G. Quakenbush the sum of $400, with interest thereon from November 10, 1921, until paid, together with the costs of this action to be taxed by the clerk. It was further adjudged that "plaintiff is the owner of the four mules and two horses described in the complaint, and that he recover the same of the defendant, to the end that the same may be sold by the plaintiff in order to discharge said indebtedness, as provided in the mortgage mentioned in the complaint", it was further ordered and adjudged that "plaintiff recover of the surety on defendant's replevin bond the sum of $1,000, to be discharged, however, upon the payment of $400, interest and costs hereinbefore adjudged in favor of plaintiff and against the defendant, or to be discharged if the personal property replevied by the defendant shall be returned to the plaintiff, together with all damages resulting from the deterioration and detention thereof under said replevin bond."

Execution was issued on said judgment, and thereafter W. W Garrett, surety on the replevin bond, moved that said judgment be set aside. Said motion was denied by the clerk, and, upon appeal by Garrett to the judge presiding in the superior court of Moore county, the order of the clerk was affirmed. Upon appeal to the Supreme Court by the surety, Garrett, the order and judgment of the clerk and the judge were affirmed.

In the opinion filed by this court it is ordered that as to "Quakenbush [the principal], the judgment below is affirmed, and as to the defendant Garrett [[surety on replevin bond] it will be modified into a judgment by default and inquiry, in order that the value of the team, for which he is responsible, subject to the prior mortgages, shall be ascertained before a jury."

Plaintiff, after full compliance with the rules of this court in respect thereto, filed a petition to rehear on May 16, 1924, respectfully insisting that it was error, due to inadvertence, for this court to order the "judgment as to defendant Garrett modified into a judgment by default and inquiry, in order that the value of the team for which he is responsible, subject to the prior mortgages, shall be ascertained before a jury."

Parker & Long, of Graham, for appellant Garrett.

H. F. Seawell, of Carthage, for appellee.

CONNOR J.

In the opinion filed in this case for the court, it is held, citing Jeffries v. Aaron, 120 N.C. 167, 26 S.E. 696:

"There being * * * no ground to sustain the [defendant's] motion upon the allegation of mistake, surprise, or excusable neglect, it could not be modified upon the ground of irregularity," for, "the court having jurisdiction of the subject and the parties, there is a presumption in favor of its judgment, and the burden of

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