Grant v. Burgwyn

• Decision Date: 28 February 1883
• Citation: 88 N.C. 95
• Court: North Carolina Supreme Court
• Parties: WILLIAM GRANT, Adm'r, v. S. EMILY BURGWYN and others.

88 N.C. 95

WILLIAM GRANT, Adm'r,

v.S. EMILY BURGWYN and others.

Supreme Court of North Carolina.

February Term, 1883.

CIVIL ACTION tried at January Special Term, 1882, of NORTHAMPTON Superior Court, before Graves, J.

Appeals were taken by both the plaintiff and defendant, S. Emily Burgwyn, which for the sake of convenience the court considered together. There were also exceptions taken to the rulings of the court with reference to the rights of the interpleader, Welsh, but as the court found it unnecessary to consider them, it is needless to state them.

The plaintiff begun his action against the defendant, Burgwyn, on the 18th June, 1877, and at the same time sued out warrants of attachment, which were returned as levied on the indebtedness of one McRae to the said defendant, amounting to $4,500, and evidenced by four bonds given to her by him.

In his complaint which was filed at fall term, 1877, the plaintiff alleged three distinct causes of action against the said defendant:

1. That on the _____ day of December, 1857, she, together with one T. P. Burgwyn, executed a bond to the plaintiff's testator for the sum of $3,059, upon which two partial payments had been made, one of $500, on April 6th, 1859, and the other of $600, on January 14th, 1860, and that no other payments had been made thereon.

2. That at fall term, 1866, the said testator recovered of T. P. Burgwyn and said defendant a judgment for $2,313, of which no part had been paid.

3. That at spring term, 1866, the said testator had another judgment against the same parties for the same sum of $2,313, of which no part had been paid.

In her answer the defendant, Burgwyn, admitted the execution of the bond sued on, but averred that the same had been paid in full, and she denied that any such judgments, as those set forth in the complaint, had ever been recovered by the testator of the plaintiff.

Subsequently to this, the defendant, Welsh, was allowed by the court to interplead, and filed his claim, setting forth that the bonds attached were his own, and had been assigned to him before the levy of the attachment thereon, and for a valuable consideration. To this the plaintiff replied, denying his property in the bonds.

At spring term, 1880, the cause was called for trial, when the defendant's counsel, alleging that they were surprised at the proof of the judgments declared on, asked for a continuance of the cause, and thereupon the plaintiff's counsel said that rather than have a continuance they would enter a nolle prosequi, as to the plaintiff's second and third causes of action, and accordingly the same was done.

The trial was then proceeded with, resulting in a verdict and judgment for the plaintiff, from which an appeal was taken to this court, which was heard at June term, 1880, and a new trial awarded. See Grant v. Burgwyn, 84 N. C., 560.

The opinion having been certified to the court below, the plaintiff caused notice to be served upon the defendants, in September, 1881, that he would rely upon the second and third causes of action, set forth on his original complaint, and as to which a nolle prosequi had been entered.

At fall term, 1881, the defendant, Burgwyn, with the leave of the court, filed an amended answer, wherein she alleged that two judgments in favor of the plaintiff's testator had been rendered upon the bond sued on--one at spring term, 1866, and another at fall term in the same year--and she insisted that the bond was therefore merged in and extinguished by said judgments, so that no action could be maintained thereon.

When the cause was again called for trial at said special term, held in January, 1882, it was conceded by the plaintiff that the bond declared on, as the plaintiff's first cause of action, had been reduced to judgment as set forth in the amended answer.

After the jury were impaneled, the complaint was read as originally drawn, to which the defendants objected upon the ground that a nolle prosequi had been entered to the second and third causes of action, so that they no longer constitute any part of the complaint, and thereupon the plaintiff's counsel remarked that they would ask leave to amend the complaint, by restoring to it those two causes of action, but upon hearing the amended answer read, His Honor suggested that, as it admitted the judgments, it supplied the defect in the complaint, and rendered its amendment unnecessary, though it could be allowed at any time if needed, and the counsel then said they would ask for it later in the trial.

His Honor then stated that as to the judgments set up in the answer, there was no issue made by the pleadings, to which both parties assented, and so there was but a single issue submitted, touching the ownership of the bonds attached by the defendant, Welsh, and to which the jury responded that he was not the owner thereof.

The defendant, Welsh, then moved to set aside the verdict, which the court declined to do.

The defendant, Burgwyn, then moved for judgment on the pleadings and admissions of the plaintiff, that she go without day, and for costs, and also that the attachment be dissolved, both of which motions were refused by the court.

The plaintiff then moved to amend his complaint, re-instating the second and third causes of action of the original complaint, to which His Honor replied that, though unwilling to set aside the verdict, he did not approve of it. Nor did he think it would be in furtherance of justice, to allow the complaint to be amended as asked, and he refused the motion to that effect.

Judgment was then rendered for the plaintiff, that he recover of the defendant, Burgwyn, the sum of $2,313.37, with interest, &c., and condemning the bonds levied on, and the indebtedness evidenced thereby, to the satisfaction of said judgment.

In the plaintiff's appeal, the error assigned is the refusal of the court to enter the amendment as asked for; and in the defendant's, the refusal to give her judgment that she go “without day,” and the granting of the judgment to the plaintiff.

Messrs. W. Bagley, T. W. Mason and Mullen & Moore, for plaintiff .

Messrs. Thos. N. Hill and W. C. Bowen, for defendants .

RUFFIN, J.

It seems to this court to be impossible to sustain the judgment, which was rendered in this cause in the court below, upon any principle of law or rule of pleading.

So long ago as the time of LORD COKE, in Higgans' Case, 6 Rep., 45, it was resolved, that whenever a judgment was recovered upon a bond, and the same remained in force, then the obligee in the bond could not have a new action upon it--the principle of the decision being, as expressed in the maxim transit in rem judicatum, that the cause of action is thereby changed into a matter of record of a higher nature, and the inferior remedy is merged therein.

In Brooms Commentaries, 269, this doctrine of merger is thus explained: “So, if...