Patton v. Robertson

• Decision Date: 16 April 1888
• Citation: 6 S.E. 193,99 N.C. 280
• Parties: PATTON v. ROBERTSON.
• Court: North Carolina Supreme Court

6 S.E. 193

99 N.C. 280

PATTON v. ROBERTSON.

Supreme Court of North Carolina

April 16, 1888

Appeal from superior court, Henderson county; MACRAE, Judge.

S. V Pickens and W. A. Gash, for appellant.

E. C Smith and T. F. Davidson, for appellee.

DAVIS J.

This action was originally commenced before a justice of the peace of Henderson county, and carried by appeal to the superior court of said county. At the time of issuing the summons, the plaintiff made affidavit that the defendant Robertson "is not a resident of this state, but has disposed of and removed all of his property from this state to the state of South Carolina, with the intent, as affiant is informed and believes, of defrauding his creditors;" and gave the undertaking required for arrest and bail. Thereupon an order of arrest was issued, under which the defendant Robertson was arrested by the sheriff, and gave bail in accordance with section 299 of the Code, the defendant H. Y Gash signing the written undertaking as one of his sureties. The cause was continued, by consent, to the 14th of March, 1885, when the plaintiff filed a written complaint, alleging that the defendant Robertson was indebted to him in the sum of $211.15, but remitting the excess above $200, and further alleging that said defendant had removed from this state, and was a resident of the state of South Carolina. The defendant answered orally, denying the allegations of the complaint, and moved for his discharge from arrest. The action was tried before the justice upon the question of indebtedness to the plaintiff, and "after hearing the proofs, allegations, and arguments, the court ordered and adjudged that the defendant be discharged from arrest, and plaintiff pay the costs of this action." From this judgment the plaintiff appealed to the superior court. At the spring term, 1886, of the superior court, upon issues submitted to the jury, it was found that the defendant was indebted to the plaintiff in the sum of $200, with interest, etc., upon which judgment was rendered in favor of the plaintiff against the defendant Robertson for $200, with interest from March 11, 1885, and costs. Upon this judgment, execution was issued, returnable to fall term, 1886, of the superior court, and the sheriff made return thereon: "No goods, chattels, lands, or tenements to be found in my county. Dated, "etc. Thereupon the plaintiff caused execution to be issued against the person of the defendant, to which the sheriff made return: "Due search made, and defendant not to be found." Thereupon the plaintiff caused notice to be served upon the defendant Gash of a motion for judgment against him as one of the sureties upon the undertaking signed by him as bail. This motion was heard before MACRAE, 'J., at spring term, 1887, when it was adjudged that the plaintiff recover of the defendant Gash, "surety upon the undertaking aforesaid, the sum of $200," etc. From this judgment the defendant Gash appealed to this court. No exceptions appear in the record to have been taken or errors assigned in the court below, but the following errors are alleged in this court: "(1) The judgment against the appellant was rendered upon a state of facts found by the judge without any waiver by the appellant of his right to have such issues or questions of fact determined by a jury. (2) No judgment should have been rendered against the appellant as security until the alleged fraud had been fixed upon the defendant Robertson by a judgment." Counsel for the plaintiff moves to affirm the judgment of the court below because there is no assignment of errors, and none appear upon the face of the record.

As to the first exception, the record does not show what issues or questions of fact, or that any issues or questions of fact, were asked to be submitted to a jury, and refused; nor, in fact, does it appear that any questions of fact were determined or found by the judge, except such as arose upon the record, and were determined by an inspection of the record. The exception was not taken below, was not assigned as error in the record, and, as has been often held by this court, will not for that reason, be considered by us.

As to the second exception, the appellant insists that the error alleged is one that appears upon the face of the record. That the record proper shows that the judgment against Robertson for whom the appellant was bail, was for the debt only; and, as no question of...