Leak v. Covington
| Decision Date | 23 April 1888 |
| Parties | LEAK v. COVINGTON et al. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Richmond county; CLARK, Judge.
John W Leak and William L. Covington were co-sureties on an administration bond of one James A. Covington. Judgment was rendered against Leak on account of such bond, and on payment of the same this action was brought by Ann C. Leak, as executrix of John W. Leak, against the executors of William L. Covington and others, to whom, under his will, the lands of which he died seized have come, to enforce contribution. There was a judgment for the plaintiff, and the defendants appealed.
On an issue as to whether a certain person was insolvent, an instruction that, if the jury believe the evidence, they will respond to such issue "No," was properly refused as withdrawing from the jury the credibility of evidence.
Burwell & Walker and Jones & Tillett, for appellee.
J. D Shaw and Frank McNeill, for appellants.
Edward P. Covington, guardian of the infant children of John P. Covington, in an action upon the administration bond executed by James A. Covington on his appointment as administrator of the intestate, John P., against him as principal, and the two sureties thereto, John W. Leak and William L. Covington, (the other surety, B. B. McKenzie, being insolvent,) recovered judgment in the sum of $5,453.69 damages at fall term, 1876, of the superior court of Richmond county. The plaintiff, Ann C. Leak, appointed in the will of the said John W., his executrix, and upon his death, pending the action, made a defendant in his stead, out of the testator's assets satisfied the judgment, having on February 3, 1887, paid thereon $3,797.39, in full of the debt and interest, and the further sum of $371.06 for costs incurred in the action. The form of the judgment was afterwards so amended as to make it for the penalty of the bond, dischargeable on payment of the damages assessed; and the right to do this was affirmed on an appeal to this court. Wall v. Covington, 83 N.C. 144. The present action, instituted by the plaintiff, who has discharged the debt recovered upon the bond to which her testator was a surety, against the executors of William L. Covington, a co-surety, and the other defendants named, to whom, under his will, the lands whereof he died seized and possessed have come, to the end that they be applied to his debts, and especially to reimburse to the plaintiff one moiety of the sum she has been compelled to pay. This brief statement will suffice to a proper understanding of the exceptions taken during the course of the trial of the issues before the jury. These issues, five in number, are, with the responses to each, as follows:
The plaintiff offered in evidence the record of the action of H. C. Wall and T. C. Leak, executors of Mial Wall, against James A. Covington, and the sureties to his administration bond, executed when letters on the estate of his intestate John P. Covington issued to him, to which objection was made on the ground that the executors of the said William L. Covington, though originally in the action, ceased to be parties upon the entry of the nol. pros. as to them. The objection was overruled, and the transcript received as evidence. As we understand the objection, it is that, as to them, the judgment is not only not binding, but inadmissible to fix any liability upon the estate of their testator to the plaintiff, and still less in determining the amount. It is not pretended that the recovery was not resisted fully and in good faith, nor is any collusion between the opposing parties suggested. We must therefore consider the recovery as rightful and proper. Under such circumstances, cannot the surety, upon proof of what he has been compelled to pay under an adjudication he could not successfully resist, make his co-surety share in the loss; and that, without being required to again go over the account, and to establish the claim which the common creditor had against both, and successfully asserted against one? We concur in the ruling that the record is evidence of the extent of the damage, and prima facie proof of it. In Armistead v. Harramond, 4 Hawks, 339, HALL, J., delivering the opinion of the court, declares that a judgment recovered against an administrator in an action upon a judgment rendered against the intestate in his life-time is, as to the former and his sureties, evidence of a debt due by the deceased, but not of the possession of assets with which to meet it. The same principle is announced by BATTLE, J., in Strickland v. Murphy, 7 Jones, (N. C.) 242, and by RODMAN, J., in Lewis v. Fort, 75 N.C. 251, in which he uses this language: "In our opinion, independently of the circumstance that the principal had notice of the present action against his sureties, and either did defend it, or might have defended it, the record of a judgment against the sureties would be evidence that they were compelled to pay on the note recovered on, and of the amount they were compelled to pay on the note recovered on, and of the amount they were compelled to pay;" citing 1 Greeni. Ev. § 537. And so, more explicitly, it is declared in Hare v. Grant, 77 N.C. 203, that in the absence of fraud and collusion, where the surety is sued with his principal, or alone, and notifies his principal so as to enable him to defend, or to furnish him with a defense, the recovery against the surety is the measure of his damages against his principal, and the record is conclusive evidence. The principle must be the same between the sureties, and for the like reason; more especially in view of the statute which, when the principal is insolvent or out of the state, allows a surety who had paid the debt to recover contribution from a co-surety of the latter's ratable part. Code, § 2094. All the elements entering into and constituting civil responsibility are found in the facts of the case. The executors were for a time in the action, and were cognizant of its aims, and they retired from it, not for anything done by the present plaintiff, but solely because the money could more readily be made out of a solvent estate without the delay of an inquiry into the condition of the surety represented by the executors, and the resources in their hands.
2. The plaintiff proposed to show by the oath of the clerk and of one of his attorneys, that, after diligent search in the office, the papers relating to the amendment made in the form of a judgment, the papers showing it to have been done could not be found, and that the docket only contained this memo randum at fall term, 1879: "Motion to amend judgment granted,"--with the view of letting in secondary evidence of the action of the court. This being deemed sufficient proof of the loss, she was allowed to introduce a certified copy of the record of the supreme court, to which a transcript had been sent on the appeal from the superior court. The defendants objected to the introduction of secondary evidence, for that the loss of the original in the motion to amend had not been sufficiently shown. The objection was overruled, the court finding that the loss, after so diligent a search, had been established. It is only necessary to say of this exception that, if there was evidence of the loss before the judge, his finding of the fact is not the subject of review in this court, but is conclusive of the matter. Thus, when the question is whether a confession was voluntarily made or superinduced by fear or hope held out, the finding of the judge is the determination of a fact not examinable on appeal; but the ruling as to what such fear or hope is which shall exclude, is a matter of law, an error in regard to which is open to review and correction. State v. Vann, 82 N.C. 631; State v. Sanders, 84 N.C. 728; State v. Efler, 85 N.C. 585; State v. Burgwyn, 87 N.C. 572. In like manner, the presiding judge must himself determine the facts upon which the competency of a witness to testify depends, upon a preliminary inquiry as whether a person is an expert, so as to give an opinion to the jury, (State v. Secrest, 80 N.C. 450; Flynt v. Bodenhamer, Id. 205;) or whether the witness was of mixed blood, when, under the former law, he would not be competent to give evidence against a white person, or the search for a lost paper was sufficient to admit proof of its contents, (Kidder v. McIlhenny, 81 N.C. 123; Jones v. Call, 93 N.C. 170; Stith v. Lookabill, 68 N.C. 227.)
3. The plaintiff was then, after objection which was not sustained allowed, after offering direct evidence of the insolvency of James A. Covington by producing judgments and unsatisfied executions issued and returned, to prove the general repute of his insolvency, and that of B. B. McKenzie, when they were known for some years before the bringing of this suit. There is no error in admitting the testimony as to insolvency, which, in the words of HENDERSON, J., in State v. Cochran, 2 Dev. 63, is, in his opinion, "the best and almost the only proof by which such facts can...
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