State ex rel. Morgan v. Smith

• Decision Date: 31 October 1886
• Citation: 95 N.C. 396
• Court: North Carolina Supreme Court
• Parties: STATE ex rel. S. T. MORGAN, Adm'r, v. W. A. SMITH.

95 N.C. 396

STATE ex rel. S. T. MORGAN, Adm'r,

v.W. A. SMITH.

Supreme Court of North Carolina.

October Term, 1886.

OPINION TEXT STARTS HERE

CIVIL ACTION, tried before Connor, Judge, and a jury, at April Civil Term, 1886, of Wake Superior Court.

The action was brought on the official bond of one John N. Bunting, as Clerk of the Superior Court of Wake County, given for a term of office beginning in 1868, and ending on September 4th, 1874, at which time said Bunting was re-elected Clerk, as his own successor, and gave a new bond.

The defendant, one of the sureties on the bond given in 1868, pleaded, among other things, that said Bunting had paid the money, which it was admitted he had received as clerk, over to himself as his own successor, and that the bond given in 1874 was alone liable.

The plaintiff's relator introduced evidence tending to show that at the time of his qualification in 1874, the said Bunting had no money to his credit as clerk in any of the banks in Raleigh.

The other facts fully appear in the opinion.

Messrs. Charles M. Busbee, Jos. B. Bachelor and John Deveereux, Jr., for the plaintiff .

Messrs. T. M. Argo and Daniel G. Fowle, for the defendant .

SMITH, C. J.

S. D. Morgan, residing in Wake county, died intestate in the year 1864, and letters of administration on his estate soon afterwards issued to one William Laws, who also died on March 15th, 1871, without having executed and closed his trust by a final settlement. During the course of his administration, he sued for and recovered divers judgments against persons indebted to his intestate, on which excutions issued, and the moneys due were collected and paid into the clerk's office, in amounts specified in the complaint, between August 11th, 1870, and May 4th, 1871.

John N. Bunting was elected clerk, and entered upon his official duties on the first Monday in September, 1868, having executed a bond with Willie D. Jones, James M. Harris, and the defendant William A. Smith, his sureties, in the form and with the condition prescribed by law, for the due discharge of the duties of said office. This term of office expired on the first Monday in September, 1874, when being re-elected, he entered upon a new term of office for the four years next ensuing, and gave other bonds. No administration was granted on the intestates estate, until letters de bonis non issued to the present plaintiff, on July 3d, 1879, who brought his action on the bond against the clerk, and the sureties, Jones and Harris, and recovered judgment, but has been unable to obtain satisfaction thereof.

The present action is on the same bond, against the defendant, the other surety, who answers denying his liability in the premises, and most of the facts upon which it is dependent, and setting up as a defence, the three and six years limitation of time for bringing actions specified in the statute.

Upon the trial, the defendant moved to dismiss the action, for that the complaint failed to aver a conversion of the funds and breach of official obligation to have taken place during the clerk's first term of office, or to negative his transfer of the moneys to himself, as his own successor, after entering upon his second term. The Court refused the motion, remarking that if necessary or proper in the progress of the trial, he would allow an amendment remedying the alleged defect. Such an amendment was subsequently put in, after the rendition of the verdict. To this the defendants' counsel objected, upon the ground that if made during the trial, he would have introduced other testimony.

In response to this suggestion, the Court remarked that if the defendant would, by affidavit, show during the term that he had any evidence pertinent to the case as presented after the amendment, the amendment should be refused, or the verdict set aside and a new trial granted. No such affidavit was made.

In our opinion, if any cause of complaint was afforded, it was removed by this action of the Court, and we think none was, since the allowance of amendments at any time before final judgment, if not after, rests in the sound discretion of the Judge.

The issues, four in number, submitted to the jury, and their responses to each, are in substance, the following:

I. Did Bunting, by virtue and color of his office as clerk, receive the amounts and at the dates specified in the complaint? Answer: Yes.

II. Did he pay over the same to the persons entitled, prior to his entering upon his second term of office, and if so, how much? Answer: No.

III. Did he safely keep and have in his hands, as clerk, the moneys so received, at the time of his second induction into office? Answer: No.

IV. Did the plaintiff demand said moneys, and if so, when? Answer: Yes; between the 3d and 14th days of July, 1879.

Judgment was accordingly rendered in favor of the relator, and the defendant appealed.

1. The appellant's first exception is to the admission in evidence, of the record of the judgment upon the same bond, in the action before instituted against the principal and other sureties, to show the extent of the clerk's liability.

The testimony and record were competent for that purpose.

In Armstead v. Harramond, 4th Hawks, 339, HALL, J., said that a “judgment against an administrator is evidence against him of a debt due by the intestate, and is evidence also of assets in his hands to discharge it; and although, for the reason before given, it is also evidence of a debt due, as far as it relates to his sureties,” &c.

So, in Strickland v. Murphy, 7 Jones 242 (244); BATTLE J., remarks: “If a judgment had been obtained against the administrator, they (the sureties to his bond), would be concluded as to the debt, though not as to the assets.” In the construction of the Act of 1844, Rev. Code, ch. 44, §10, it is decided that the judgment against the principal upon such offiical bond as the act mentions, is not only conclusive of the debt, as it was without the aid of the enactment, but of assets also, and...