Speight Box & Panel Co. v. Ipock

• Decision Date: 10 April 1940
• Docket Number: 315.
• Citation: 8 S.E.2d 243,217 N.C. 375
• Parties: SPEIGHT BOX & PANEL CO. v. IPOCK et al.
• Court: North Carolina Supreme Court

8 S.E.2d 243

217 N.C. 375

SPEIGHT BOX & PANEL CO. v. IPOCK et al.

No. 315.

Supreme Court of North Carolina

April 10, 1940

Plaintiff instituted the action to recover possession of certain personal property conveyed by mortgage to the plaintiff. A writ of claim and delivery was issued and the defendants filed a replevin bond. The name of C. D. Heath appears thereon as surety.

The cause was referred and upon the report of the referee at the October Term, 1939, the Judge proceeded to hear the exceptions to the referee's report. During the hearing Heath, having been advised that his name appeared upon the replevin bond as a surety for the defendant, filed a motion that his name be stricken from the defendant's undertaking, which motion was supported by an affidavit that he never signed or authorized the signing of said bond.

The said Heath, by consent, was permitted to file the motion in the cause pending the hearing and the court suspended proceedings upon the referee's report to submit to a jury the issue raised by the motion. After hearing the evidence and the charge of the court the jury answered the issue submitted finding that Heath did not sign the bond.

After the rendition of the verdict, the Court, in the exercise of its discretion, set the verdict aside and, upon the completion of the hearing upon the referee's report rendered judgment against the defendants and the said Heath. Heath excepted and appealed.

W B. R. Guion, of New Bern, for C. D. Heath, appellant.

R E. Whitehurst, of New Bern, for plaintiff, appellee.

BARNHILL Justice.

The plaintiff is entitled to a judgment against the sureties on the defendant's undertaking according to the terms of the instrument, to be recovered in the original action. The sureties, within the limits of their obligation, are considered parties of record, and the defendants their principals. McDonald v. McBryde, 117 N.C. 125, 23 S.E. 103; Wallace & Sons v. Robinson, 185 N.C. 530, 117 S.E. 508; Orange Trust Co. v. Hayes, 191 N.C. 542, 132 S.E. 466; Long v. Meares, 196 N.C. 211, 145 S.E. 7. It is upon this theory that judgment against the sureties is rendered in the original action to the end that the whole controversy may be adjusted at once.

Ordinarily the sureties are not prejudiced until judgment is rendered. Except in case of fraud, Wallace & Sons v. Robinson, supra, a surety upon a replevin bond may challenge his liability for that he did not in fact sign the bond, or for other cause, by motion in the original action. Long v. Meares, supra; Nimocks v. Pope, 117 N.C. 315, 23 S.E. 269. But if he signed the bond he may not deny liability on the merits of the original controversy. He is bound even by a judgment consented to by defendants. Nimocks v. Pope, supra; Wallace & Sons v. Robinson, supra; Long v. Meares, supra.

The movant was permitted to appear in the original action and to...