Tar Heel Bond Co. v. Krider
| Decision Date | 30 October 1940 |
| Docket Number | 380. |
| Citation | 11 S.E.2d 291,218 N.C. 361 |
| Parties | TAR HEEL BOND CO. v. KRIDER, Sheriff. |
| Court | North Carolina Supreme Court |
Civil action to restrain the enforcement of an execution issued on a judgment rendered against plaintiff as surety on the appearance bond of one James Nance.
On 21 October, 1938, James Nance, having been arrested on a warrant charging him with violation of the prohibition law executed his appearance bond with the plaintiff as surety thereon. When the cause was reached for trial at the May Term, 1939, the said James Nance was duly called and failed to appear. Thereupon, judgment nisi on the bond was entered and sci fa and capias ordered. The sci fa having been served upon the plaintiff herein it filed answer thereto. Upon the call of the sci fa docket at the September Term, 1939, after considering the answer of the bondsman, judgment absolute on the bond was pronounced for one-half of the amount thereof and the sci fa cost.
James Nance was arrested in June, 1939, under the capias issued at the May Term and arranged other bond. At the November Term 1939, he was tried and convicted and paid the fine and cost imposed.
At the November Term, 1939, plaintiff filed motion asking that the forfeiture theretofore entered be stricken out. The hearing of this motion was continued from time to time largely through the fault of the plaintiff.
On 21 January, 1940, execution was issued against the plaintiff for the collection of the amount due on the judgment absolute. Plaintiff, on 10 April, 1940, instituted this action to restrain the enforcement of the execution.
When the cause came on to be heard on the notice to show cause the Court below entered judgment dissolving the temporary restraining order theretofore issued and dismissing the action. Plaintiff excepted and appealed.
C P. Barringer, of Salisbury, for plaintiff, appellant.
T. G. Furr, of Salisbury, Harry McMullan, Atty. Gen., and George B. Patton, Asst. Atty. Gen., for defendant, appellee.
The plaintiff herein seeks to present three questions: (1) Was it error for the court to enter judgment absolute upon the bond before the service of sci fa upon the principal James Nance? (2) Did the subsequent arrest of James Nance under the capias issued by the court discharge his bond upon which plaintiff was surety? (3) Was it error for the court below to hear and determine the application for an injunction on its merits while plaintiff's motion, entered subsequent to the judgment absolute, was pending and before ruling on the merits of the motion?
First. A recognizance duly entered into is a debt of record, and the object of a scire facias is to notify the cognizor to show cause, if any he have, wherefore the cognizee should not have execution of the same thereby acknowledged. Under the common law when a recognizance was acknowledged with a condition to be void upon the appearance of the cognizor or any other person in court and the party did not answer, the default was recorded and thereby the recognizance became absolute or forfeited. Thereupon, the cognizee might have immediate recourse to the property of the cognizor for the satisfaction thereof. However, the ordinary procedure was to sue out a scire facias thereon, and our act of 1777, Ch. 115, § 48, now C.S. § 4585, makes it imperative that before suing out execution on a forfeited recognizance a scire facias shall issue and judgment be had thereon. The recognizance is of the nature of a conditional judgment and the recorded default makes it absolute subject only to such matters of legal avoidance as may be shown by plea, or to such matters of relief as may induce the court to remit or mitigate the forfeiture. State v. Mills, 19 N.C. 552.
The remedy upon a forfeited bond is summary in nature by forfeiture and the forfeiture creates an absolute debt of record in the nature of a judgment. 17 C.J. 376. The surety's obligation is primary, original and direct. 50 C.J. 70. He is the original promisor and debtor from the beginning. Brandt on Suretyship & Guaranty, 3d Ed., sec 2; Rouse v. Wooten, 140 N.C. 557, 53 S.E. 430, 111 Am.St.Rep. 875, 6 Ann.Cas. 280; Shaw v. McFarlane, 23 N.C. 216; Gatewood v. Burns, 99 N.C. 357, 6 S.E. 635; Pritchard v. Mitchell, 139 N.C. 54, 55, 51 S.E. 783. He is in the first instance answerable for the debt for which he makes himself responsible and is directly and equally bound with his principal. Rouse v. Wooten, supra. He is primarily liable as a maker. Edwards v. Ins. Co., 173 N.C. 614, 92 S.E. 695; Horton v. Wilson, 175 N.C. 533, 95 S.E. 904; Federal Land Bank v. Whitehurst, 203 N.C. 302, 165 S.E. 793; Dry v. Reynolds, 205 N.C. 571, 172 S.E. 351; Bank of Newbury v. Richards, 35 Vt. 281, 284; Ballard v. Burton, 64 Vt. 387, 24 A. 769, 16 L.R.A. 664, 667. The text writers are explicit in assigning the undertaking of a surety to the class of primary liabilities. A surety is...
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