Kendall v. Briley

• Decision Date: 28 February 1882
• Citation: 86 N.C. 56
• Court: North Carolina Supreme Court
• Parties: THOMAS W. KENDALL v. WILLIAM K. BRILEY and wife.

86 N.C. 56

THOMAS W. KENDALL

v.WILLIAM K. BRILEY and wife.

Supreme Court of North Carolina.

February Term, 1882.

APPLICATION for leave to sue heard at Fall Term,

1881, of ANSON Superior Court, before Graves, J.

This was a motion made on October 10th, 1881, by the plaintiff to the presiding judge, for leave to bring an action upon a judgment in favor of the plaintiff against the defendants, Briley and wife.

The affidavit of the plaintiff upon which his motion was founded, stated, that the plaintiff at fall term, 1871, being the 18th day of October, obtained a judgment against the defendant and wife on a note under seal executed on the 16th day of January, 1868, for the sum of four hundred and twenty-four dollars and sixty-four cents, with interest. That no part of said judgment has ever been paid or release given to the defendants, nor assigned by the plaintiff to any one.

The defendants filed a counter-??affidavit, but His Honor found the facts as stated in the affidavit of the plaintiff, and refused to grant his application, from which ruling the plaintiff appealed.

Messrs. Reade, Busbee & Busbee, for plaintiff .

Mr. George M. Smedes, for defendants .

ASHE, J.

The application of the plaintiff was made under section 14 of the Code, which reads: “No action shall be brought upon a judgment rendered in any court of this state, which shall be rendered after the ratification of this act, except a court of a justice of the peace, between the same parties, without the leave of the judge of the court, either in or out of term for good cause shown, on notice to the adverse party.”

This section of the Code has received a construction by this court in the case of Warren v. Warren, 84 N. C., 614, where an application like this was made for leave to bring an action upon a judgment, and it was held that the judge's decision upon the question, whether “good cause” was shown, was conclusive.

The Chief Justice in delivering the opinion of the court, said: “The leave is to be granted when ‘good cause’ is shown--that is, when satisfactory reasons were given. If then he is and must be the judge, his decision that good cause does exist is not reviewable in this court. What general rule can be prescribed to guide the judge in determining the application, or this court in reviewing the exercise of his discretion?”

If his decision that good cause does exist, is not reviewable, it must follow that his decision that it does not exist is equally conclusive.

What is good cause is sufficient cause. They are synonymous terms. In the Revised Code, ch. 31, § 13, it is provided that a continuance of a cause standing for trial, may be had for sufficient cause shown to the court by affidavit. And what is sufficient cause for a continuance has been uniformly held by this court to be within the discretion of the judge, and the exercise of his discretion is not the subject of review. State v. Duncan, 6 Ired., 98; State v. Lindsey, 78 N. C., 499; Moore v. Dickson, 74 N. C., 423; Isler v. Dewey, 71 N. C., 14; Austin v. Clarke, 70 N. C., 448. Constrained by these authorities we must hold there was no error. And as the appeal has been taken from the ruling of His Honor upon a matter of discretion, the appeal must be dismissed.

RUFFIN, J. Dissenting.

I cannot bring my mind to concur in the conclusion to which my learned brethren have come in this case, and I regard the subject as one of sufficient importance to justify me in setting out the grounds of my dissent.

The purpose of the statute, under which the plaintiff is proceeding, is manifest. At common law a plaintiff in a judgment had a right to sue upon it at his own pleasure, and seeing that this right might be used for the purpose of oppression, the legislature interposed a check upon it, by providing that no such action should be instituted without the leave of the judge of the court, in which the judgment had been rendered, for good cause shown.

The good cause, then, required to be shown is anything from which the court can see that the object sought to be obtained by the new action, is a legitimate one, and not the mere purpose to harrass and oppress by needless litigation.

In this case the judgment was rendered on the 18th of October, 1871, and the motion for leave to sue was...