Shackelford Et Ux v. Staton

• Decision Date: 22 October 1895
• Citation: 117 N.C. 73,23 S.E. 101
• Court: North Carolina Supreme Court
• Parties: SHACKELFORD et ux. v. STATON.

23 S.E. 101

117 N.C. 73

SHACKELFORD et ux.

v.STATON.

Supreme Court of North Carolina.

Oct. 22, 1895.

Clerks of Court—Failure to Index Judgment —Statute of Limitations—When Applicable —Accrual of Cause of Action.

1. Code, § 155 (2), prescribing three years within which must be brought an action on a liability created by statute, other than a penalty or forfeiture, unless some other time be mentioned in the statute creating it, applies to a cause of action given by Code, § 433, in favor of a judgment creditor against a clerk of court for failure to properly index the judgment.

2. The statute of limitations begins to run against the cause of action given by Code, § 433. in favor of a judgment creditor against a clerk of court for failure to properly index the judgment, on the expiration of the clerk's term of office.

Appeal from superior court, Edgecombe county; McIver, Judge.

Action by J. F. Shackelford and Kate S. Shackelford, his wife, against H. L. Staton, to recover damages for the failure of defendant, as clerk of court, to properly index a judgment. From a judgment for defendant, plaintiffs appeal. Affirmed.

John L. Bridgers, for appellants.

H G. Connor, for appellee.

MONTGOMERY, J. It appears from the complaint that the plaintiff Kate S. Shackelford, then a feme sole, on the 13th of April, 1885, at the spring term of Edgecombe superior court, recovered a judgment for $536.89 against S. F. and B. P. Jenkins and John Killebrew; that the defendant in this action was clerk of the superior court at the time of the rendition of the judgment, and continued in that office until December, 1886, when his term expired; that the defendant docketed the judgment within the time prescribed by law, but failed to cross index the same under the name of John Killebrew, one of the defendants in the judgment, as he should have done under section 433 of the Code; that Killebrew was the owner of real estate more than sufficient in value to have discharged the judgment, after the allotment to him of his homestead, at the time when the judgment was docketed, and continued to own it until it was sold for the benefit of other creditors than the judgment creditor on the 1st of September, 1890, under a deed of trust executed by him to the trustee on the 25th of February, 1889, and that after this sale Killebrew became entirely insolvent, and has continued so; that the other judgment debtors were insolvent when the judgment was rendered, and have remained so; that by failure of the defendant to properly index the said judgment, and the subsequent conveyance by deed of trust by Killebrew, and sale under the trust, the plaintiff lost the amount of her judgment The complaint does not set forth the date of the marriage of plaintiff. The defendant, in his answer, admits the date and the amount of the judgment, and his failure to index it as required by law, and he admits the ignorance of the plaintiff as to his failure, the expiration of his term of office in December, 1886, the date of the execution of the deed of trust by Killebrew, and the sale of Killebrew's land under the trust. The defendant then pleads the statute of limitations. The summons shows that the action was...