McLean v. McLean

• Decision Date: 28 February 1884
• Citation: 90 N.C. 530
• Court: North Carolina Supreme Court
• Parties: J. C. MCLEAN, Adm'r, v. A. A. MCLEAN, Adm'r.

90 N.C. 530

J. C. MCLEAN, Adm'r,

v.A. A. MCLEAN, Adm'r.

Supreme Court of North Carolina.

February Term, 1884.

MOTION for leave to issue execution on a judgment, heard at Fall Term, 1883, of ROBESON Superior Court, before McKoy, J.

The motion was refused and the plaintiff appealed.

Messrs. Frank McNeill, T. A. McNeill and J. D. Shaw, for plaintiff .

Messrs. French & Norment and Rowland & McLean, for defendant .

SMITH, C. J.

The plaintiff as administrator de bonis non of D. H. McLean, at fall term, 1875, of the superior court of Robeson county, recovered a personal judgment for the sum of $455.61, and interest thereafter on $299.54, principal money thereof with costs, against the defendant A. A. McLean, to whom administration of the estate of G. M. McLean had been committed, on a note under seal which he had given for a debt of the intestate.

The plaintiff subsequently, in the name of the state, as relator, brought an action against the defendant and the sureties to his administration bond, executed in 1862, for the penal sum of $9,000, alleging a breach of the obligation in the non-payment by the defendant, who had come into possession of sufficient assets, of the aforesaid indebtedness of his intestate G. M. McLean, and recovered judgment against him and the sureties at spring term, 1882. The sureties appealed and prevailed in this court, it being held that there had been no breach of the bond, but the judgment against the defendant, the principal obligor, remains undisturbed and in full force in the superior court. (88 N. C., 394).

The first judgment having become dormant by the lapse of more than three years during which no execution had been sued out, the plaintiff, after due notice, on July 24, 1883, made application under section 256 of C. C. P., for leave to issue execution and enforce payment of what remained due on it, accompanying the motion with the required oath. The motion was resisted by the defendant, upon the foregoing facts which were shown, who insisted that, the same debt being included in both judgments, the vitality of the first had been absorbed in the last, and lost, so that no execution could now be issued upon it. The clerk sustaining this view, denied the motion, and on appeal to the judge his action was affirmed, and from this ruling the plaintiff's appeal brings the case before us.

Assuming that the recovered judgment is but a renewal of the first, the one being the sole cause of action of the other, we see no reason why both may not subsist and remain in force as separate securities for the same debt, with the advantages incident to each retained. It is not correct to say that one extinguishes the obligation contained in the other, and that the plaintiff's remedy must be sought only in the last. As aoon as one judgment is entered, the plaintiff may take out execution and at the same time bring another action upon the judgment, as itself a cause of action, and make a second recovery. This is clearly involved in the decision, if not directly decided in Carter v. Coleman, 12 Ired., 274.

In that case, a judgment rendered in 1842 had become dormant and a scire...