Shaw v. Baxley, 856

• Citation: 155 S.E.2d 256,270 N.C. 740
• Decision Date: 20 June 1967
• Docket Number: No. 856,856
• Parties: Albert Clinton SHAW v. Sarah BAXLEY, Oscar Baxley, Guardian ad litem for Sarah Baxley, a Minor, OscarBaxley, Individually, Aubert Blake Warwick, Carr Oil Compamy, a Corporation,and Robert Singletary.
• Court: United States State Supreme Court of North Carolina

Page 256

155 S.E.2d 256

270 N.C. 740

Albert Clinton SHAW v. Sarah BAXLEY, Oscar Baxley, Guardian ad litem for Sarah Baxley, a Minor, OscarBaxley, Individually, Aubert Blake Warwick, Carr Oil Compamy, a Corporation,and Robert Singletary.

No. 856.

Supreme Court of North Carolina.

June 20, 1967.

BOBBITT, Justice.

Plaintiff (Shaw) is not a party to this appeal. Under the judgment establishing his right to 'recover of the defendants, Sarah Baxley, Oscar Baxley, Guardian ad litem for Sarah Baxley, Aubert Blake Warwick, Carr Oil Company, and Robert Singletary, jointly and severally,' each of these judgment debtors became and is obligated to plaintiff for the payment of the full amount thereof. The judgment is based upon their liability to plaintiff as joint tort-feasors. Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911, 148 A.L.R. 1126; Simpson v. Plyler, 258 N.C. 390, 393, 128 S.E.2d 843, 845.

G.S. § 1--240, on which petitioner relies, provides:

' § 1--240. Payment by one of several; transfer to trustee for payor.--In all cases in the courts of this State wherein judgment has been, or may hereafter be, rendered against two or more persons or corporations, who are jointly and severally liable for its payment either as joint obligors or joint tort-feasors, and the same has not been paid by all the judgment debtors by each paying his proportionate part thereof, if One of the judgment debtors Shall pay the judgment creditor, either before or after execution has been issued, The amount due on said judgment, and shall, at the time of paying the same, demand that said judgment be transferred to a trustee for his benefit, it shall be the duty of the judgment creditor or his attorney to transfer without recourse such judgment to a trustee for the benefit of the judgment debtor paying the same; and a transfer of such judgment as herein contemplated shall have the effect of preserving the lien of the judgment and of keeping the same in full force as against any judgment debtor who does not pay his proportionate part thereof to the extent of his liability thereunder in law and in equity, and in the event the judgment was obtained in an action arising out of a joint tort, and only one, or not all of the joint tort-feasors, were made parties defendant those tort-feasors made parties defendant, and against whom judgment was obtained, may, in an action therefor, enforce contribution from the other joint tort-feasors; or at any time before judgment is obtained, the joint tort-feasors made parties defendant may, upon motion, have the other joint tort-feasors made parties defendant.

'If the judgment debtors do not agree as to their proportionate liability, and it be alleged in such action by petition that any judgment debtor is insolvent or is a nonresident of the State and cannot be forced under the execution of the court to contribute to the payment of the judgment, the court shall, In the action in which the judgment was rendered, after notice to the defendants or such of them as may be within the jurisdiction of the court, submit proper issues to a jury to find the facts arising on such petition and any answer that may be filed thereto, and shall, upon such verdict and any admissions in the petition and answer, enter judgment declaring the proportionate part each judgment debtor shall pay.

'Any judgment creditor who refuses to transfer a judgment in his favor to a trustee for the benefit of a judgment debtor who shall tender payment and demand in writing a transfer thereof to a trustee to preserve his rights in the same action, as contemplated by this section, shall not thereafter be entitled to an execution against the judgment debtor...