Moore v. Humphrey

• Decision Date: 10 January 1958
• Docket Number: No. 454,454
• Citation: 247 N.C. 423,101 S.E.2d 460
• Court: North Carolina Supreme Court
• Parties: C. J. MOORE, Jr. v. Dave HUMPHREY.

Page 460

101 S.E.2d 460

247 N.C. 423

C. J. MOORE, Jr. v. Dave HUMPHREY.

No. 454.

Supreme Court of North Carolina.

Jan. 10, 1958.

Smith, Leach, Anderson & Dorsett, Raleigh, for J. B. Hunt, Jr., and Patty Penn Hunt, movants, appellants.

Harris, Poe & Cheshire, Raleigh, for defendant, appellee.

BOBBITT, Justice.

The judgment attacked by appellants was entered by Judge Carr at June Civil Term, 1957, at the conclusion of a contested jury trial. It was based on the verdict, on the stipulations and on plaintiff's $12,000 undertaking, admittedly signed by the Hunts as sureties.

Plaintiff's appeal was not perfected. If the judgment was erroneous, that is, based upon an erroneous application of legal principles to the established facts, it could be corrected only by this Court on appeal or on certiorari. Mills v. Richardson, 240 N. C. 187, 81 S.E.2d 409, and authorities cited.

This appeal presents this question: Is the judgment, on the face of the record, void or irregular, insofar as it relates to and affects the sureties on plaintiff's $12,000 undertaking, as asserted by appellants? Judge Bickett's answer was 'No.' We agree.

The distinction between void, irregular and erroneous judgments was stated by Merrimon, C. J., in Carter v. Rountree, 109 N.C. 29, 13 S.E. 716, 717, as follows: 'A void judgment is one that has merely semblance, without some essential element or elements, as when the court purporting to render it has not jurisdiction. An irregular judgment is one entered contrary to the course of the court, --contrary to the method of procedure and practice under it allowed by law in some material respect; as if the court gave judgment without the intervention of a jury, in a case where the party complaining was entitled to a jury trial, and did not waive his right to the same. Vass v. People's Building & Loan Association, 91 N.C. 55; McKee v. Angel, 90 N.C. 60. An erroneous judgment is one rendered contrary to law. The latter cannot be attacked collaterally at all, but it must remain and have effect until by appeal to a court of errors it shall be reversed or modified. An irregular judgment may ordinarily and generally be set aside by a motion for the purpose in the action. This is so, because in such case the judgment was entered contrary to the course of the court, by inadvertence, mistake, or the like. A void judgment is without life or force, and the court will quash it on motion, or ex mero motu. Indeed, when it appears to be void, it may and will be ignored everywhere, and treated as a mere nullity.' (Our Italics.) Stafford v. Gallops, 123 N.C. 19, 31 S.E. 265; Moore v. Packer, 174 N.C. 665, 94 S.E. 449; Duffer v. Brunson, 188 N.C. 789, 125 S.E. 619; Dail v. Hawkins, 211 N.C. 283, 189 S.E. 774; Simms v. Sampson, 221 N.C. 379, 20 S.E.2d 554; Mills v. Richardson, supra. See McIntosh, N.C.P. & P., secs. 651, 652 and 653.

The judgment was not void, for the court had jurisdiction of the subject matter and of the parties. As to the subject matter there is no question or contention. As to the parties, it is well settled that sureties on the defendant's undertaking in claim and delivery proceedings, within the limits of their obligation, are parties of record. Speight Box & Panel Co. v. Ipock, 217 N.C. 375, 8 S.E.2d 243; Long v. Meares, 196 N.C. 211, 145 S.E. 7; Wallace & Sons v. Robinson, 185 N.C. 530, 532, 117 S.E. 508, 509, and cases cited. Moreover, it is stated by Hoke, J. (later C. J.), and supported by the authorities he cited, 'that their principal, the defendant in the case, is their duly constituted agent having power to bind them by compromise or adjustment of the matter in any manner within the ordinary and reasonable purview and limitations of the action, and to have the same evidenced, secured, and enforced by judgment and final process in the cause.' Wallace v. Robinson, supra.

The rule so established and declared as to sureties on defendant's undertaking applies equally to sureties on plaintiff's undertaking. Council v. Averett, 90 N.C. 168; Boylston Insurance Co. v. Davis, 74 N.C. 78.

Too, it is well settled that, upon determination of the action as between the principals, the prevailing party is entitled to a summary judgment against the sureties in accordance with the statute and the terms of the bond. Orange Trust Co. v. Hayes, 191 N.C. 542, 132 S.E. 466; Council v. Averett, supra; Harker v. Arendell, 74 N.C. 85; Boylston Insurance Co. v. Davis, supra.

We consider now the several contentions advanced by appellants to support their position that the judgment is irregular, bearing in mind the definition of an irregular judgment quoted above.

Ordinarily a judgment drafted in accordance with the statute and the terms of the bond would provide, first, for the return of the porperty, with damages for its deterioration and detention. In Orange Trust Co. v. Hayes, supra, and McCormick v. Crotts, 198 N.C. 664, 153 S.E. 152, cited by appellants, the judgment, on appeal, was held erroneous because it did not so provide. Here, the judgment was not erroneous in this respect; for, in view of the stipulation that the property could not be returned, such provision in the judgment was neither necessary nor appropriate. Council v. Averett, supra. The distinction is drawn in Hall v. Tillman, 103 N.C. 276, 9 S.E. 194. Also, see Randolph v. McGowans, 174 N.C. 203, 93 S.E. 730.

Where the property is returned, as in Hall v. Tillman, supra, the limit of the liability of the sureties on the bond is the amount of damages for the deterioration and detention of the property, and until the amount of such damages is determined by verdict or by agreement there is no basis for judgment against the sureties. See also, Orange Trust Co. v. Hayes, supra. In Hall v. Tillman, supra, the sureties contended, as here, that the judgment rendered against them was irregular and void. However, it seems that the sureties appealed from the first judgment rendered against them; and whether the judgment was void, irregular or erroneous was not discussed in the opinion. It is further noted that in Orange Trust Co. v. Hayes, supra, the error was corrected on appeal from the first and only judgment.

Too, where the property cannot be returned, as in Griffith v. Richmond, 126 N.C. 377, 35 S.E. 620, the limit of the liability of the sureties on the undertaking is the value of the property at the time of the seizure, with interest thereon as damages for such seizure and detention; and, until the amount thereof is determined by verdict or by agreement, there is no basis for judgment against the sureties. In Griffith v. Richmond, supra, the error was corrected on appeal.

Where facts are stipulated, they are deemed established as fully as if determined by the verdict of a jury. Lumbee River Conference of H. M. C. v. Locklear, 246 N.C. 349, 355, 98 S.E.2d 453, and cases cited; Edwards v. Raleigh, 240 N.C. 137, 81 S.E.2d 273, and cases cited. A stipulation is a judicial admission. As such, 'It is binding in every sense, preventing the party who makes it from introducing evidence to dispute it, and relieving the opponent from the necessity of producing evidence to establish the admitted fact.' Standsbury, North Carolina Evidence, sec. 166.

Appellants contend: 'The judgment, insofar as it purports to be based on the stipulation of counsel for plaintiff and counsel for defendant is void as to the makers of this motion for the reason that they did not expressly or by implication authorize plaintiff or plaintiff's counsel to sign said stipulation in their behalf and have not in any way ratified or approved his act.' The cases cited in support of this statement are simply to the effect that 'an attorney at law has no authority to compromise his client's case, or to consent to a judgment, which will be binding on his client, founded upon such compromise, unless * * * specially authorized so to do by his client.' Morgan v. Hood, 211 N.C. 91, 189 S.E. 115, 116; Bath v. Norman, 226 N.C. 502, 39 S.E.2d 363. It is unnecessary to consider to what extent a stipulation relating to specified facts may be distinguished from a consent judgment fixing the ultimate rights and liabilities of the parties. Here there is no contention or suggestion that the counsel who represented plaintiff at the trial were not fully authorized by plaintiff to make and enter into the stipulations.

It is well settled that sureties in claim and delivery proceedings are bound by a consent judgment based on the principal's agreement. The rule is stated by Smith, C. J., in Council v. Averett, supra, as follows: 'The plaintiff prosecutes his own action, and the sureties assume responsibility for whatever may be legitimately and bona fide adjudged against their principal, who alone is the manager of his action, and by whose conduct of it they must abide. His right to compromise in preference to hazarding the results of an inquiry into the value of the goods before a jury cannot be questioned, nor is a judgment thus rendered any less binding on the sureties. This the sureties agree to pay, and the summary judgment against them also was entirely correct and proper.' Robbins v. Killebrew, 95 N.C. 19, 24; McDonald v. McBryde, 117 N.C. 125, 23 S.E. 103; Nimocks v. Pope, 117 N.C. 315, 23 S.E. 269; Wallace v. Robinson, supra; Long v. Meares, supra. A fortiori, the sureties are bound by stipulations of fact, made and entered into by plaintiff at the trial, relating to a particular phase of the case.

Even so, appellants assert that the facts established by the verdict and by the stipulations are insufficient to support the judgment. The contention is that 'the vital and determinative issue of whether plaintiff was the owner and entitled to the possession of the property seized in the claim and delivery proceeding was not submitted to the jury or otherwise determined.'

'A fact essential to the plaintiff's cause of action need not be proved if it is alleged in the complaint and...