Worth v. Cox

• Court: North Carolina Supreme Court
• Writing for the Court: SMITH
• Citation: Worth v. Cox, 89 N.C. 44 (N.C. 1883)
• Decision Date: 31 October 1883
• Parties: J. M. WORTH, Trasurer, v. JOHN H. COX and others.

89 N.C. 44

J. M. WORTH, Trasurer,

v.JOHN H. COX and others.

Supreme Court of North Carolina.

October Term, 1883.

OPINION TEXT STARTS HERE

PROCEEDING in summary judgment against a sheriff for failure to pay state tax in the time allowed by law, commenced before the clerk, and heard at June Term, 1883, of WAKE Superior Court, before Philips, J.

On motion before the clerk of the superior court of Wake, judgment was rendered against the defendant sheriff of Perquimans county, and the sureties upon his bond, under the provisions of the revenue act, for failure to pay taxes according to law. An appeal therefrom was refused by the clerk, and the defendant sureties then applied to the judge for the writ of certiorari, alleging, in substance, that they had no notice of the time when the motion for judgment would be made; that the acts of assembly (referred to in the opinion of this court) extended the time for the sheriff, their principal, to settle the taxes, and that the indulgence was given without their consent or privity. The petitioners insist that they are therefore released from all liability as sureties; that they were entitled to notice of said motion, and to the right of appeal from the judgment rendered by the clerk. Thereupon the judge granted the certiorari; notice of the proceeding was served on the plaintiff state treasurer, and on the hearing the attorney-general filed the following demurrer to the petition of the defendants, to-wit:

The plaintiff, waiving any irregularity that may exist in the mode of procedure resorted to by the defendants, and wishing to have the matter determined upon its merits, demurs to the petition of the defendants, and says that the facts set forth do not constitute a cause of action, assigning as grounds therefor:

1. That the defendant sheriff and sureties are liable to the judgment rendered against them, without other notice than that given by the auditor to the plaintiff treasurer of the failure of the sheriff to settle his account for taxes within the time required by law; and this notice was given in accordance with the express provisions of the machinery act.

2. The legislature imposes the burden of taxation and controls the machinery for the collection of the revenues, and can legally indulge or suspend the collection of the same, and the defendant sheriff and sureties, in accepting the office and executing the public official bond upon which said judgment is rendered, are thereby affected with notice of this legislative power, are subject to its exercise, the same being, in law, a part of their said contract with the state, and therefore binding as well upon the sureties as the principal.

Wherefore the plaintiff says that the said sureties are not released from their said obligation by reason of the legislative extension of the time within which their principal was required to settle his account for taxes, and prays that the petition be dismissed at defendants' costs.

After argument of counsel, the demurrer was sustained by the court. Judgment that plaintiff recover costs: appeal by defendants.

Attorney-General, for the plaintiff .

Messrs. Battle & Mordecai and J. W. Albertson, for defendant .

SMITH, C. J.

The defendant Cox, sheriff of the county of Perquimans, being in default in his settlement of public taxes, and the time allowed therefor having expired, summary judgment was entered before the clerk in the superior court against him and the other defendants, the sureties, upon their official bond for the sum due, under the provisions of section 44, chapter 117 of the acts of 1881. Pending the motion and before rendition of the judgment, counsel for the sureties, being notified thereof by the clerk, appeared before him and made objection on the ground that indulgence had been granted to their principal, and the time for settlement enlarged by two successive acts of the general assembly, whereby they had been discharged from their liability. The objection was overruled, and judgment recovered for the penalty of the bond, to be discharged by payment of the sum in arrear, but without the penalties superadded for the delinquency.

The sureties thereupon proposed to appeal to the judge, as we suppose, though the record does not so state, and on being refused, applied by petition to him for a writ of certiorari. The defence therein set up to the action before the clerk is, that there being no previous notice to the defendants, the judgment was unauthorized and null; and secondly, that the effect of the acts granting indulgence to the sheriff and extending the time for payment of the taxes, was to release them from their obligation as his sureties.

The judge granted a rule on the treasurer to show cause at a designated day why the certiorari should not be ordered, to answer which the attorney-general appeared on the return day and insisted that the causes assigned in the petition for the writ were insufficient in law to warrant its issue. The application was on the hearing denied, and the defendants' appeal brings the matter up for determination.

The course of proceeding adopted to bring the matters of defence relied on before the judge for adjudication, involves a misconception of the character of the judgment and the proper mode of impeaching it. The judgment is rendered in the superior court and constitutes a part of its records, so that no certified transcript from the clerk was necessary in order to its being judicially taken notice of by the judge, and a simple motion after notice was all that was necessary to bring the matter before him, as is pointed out by BYNUM, J., in Prairie v. Worth, 78 N. C., 169. We notice this irregularity to avoid the inference of its receiving our sanction, and consider the application as a motion in the cause.

We proceed then to examine the validity of the defences set up on behalf of the sureties who appeal.

1. The regularity and efficacy of the summary judgment rendered without previous actual notice:

In looking into the legislation which introduced this summary process against public agents, we find that in 1793 an act was passed authorizing the attorney-general, on motion, to take judgment against receivers having public moneys in their hands and failing to pay over, and that their own delinquences should be sufficient notice of the motion therefor. The compatibility of the enactment wit...