Darden v. . Blount , 126 N.C. 247 ( 1900 )

FAIRCLOTH, C. J., dissents. (248) A case agreed was submitted to his Honor at November Term, 1899, of GREENE, who adjudged: That the plaintiffs recover of the defendants the sum of $1,078.93, with interest thereon at 7 per cent per annum from 1 December, 1897, and the costs of this action, to be taxed by the clerk.

The defendants excepted and appealed.

The agreed facts are reviewed in the opinion. At Fall Term, 1891, the plaintiff recovered judgment against one Beaman for $15,000, "to be discharged upon payment to her" of the sum of $1,908.33, and of a further sum ordered to be ascertained by a reference. At Fall Term, 1892, a further judgment was rendered after reciting that whereas, "At Fall Term, 1891, of this court a judgment was rendered against said R. J. W. Beaman, in the sum of $15,000, to be discharged upon the payment" of $1,908.33, and a further sum to be ascertained by the reference ordered, and that by agreement said further sum is $7,150.65, "It is now by consent adjudged that the said judgment of $15,000 be discharged upon the payment of the aforesaid $1,908.33, as set out in the original judgment, and upon the payment of the further sum of $7,150.65, with interest at 8 per cent from December, 1891, till paid."

The above judgment of Fall Term, 1891, was docketed and indexed, but the discharging or supplementary judgment at Fall Term, 1892, though docketed, was not indexed. The $1,908.33 was paid, but there remains a balance unpaid, upon the $7,150.65, of $1,078.93. Beaman (249) gave a mortgage upon his realty in 1893, under which it has since been sold, and he himself has since died wholly insolvent. This action is brought against the defendant Blount, Clerk of the Court in 1892, and his sureties, for the $1,078.93, balance now due on the judgment, by reason of his failure to index said judgment of Fall Term, 1892. Holman v. Miller, 103 N.C. 118; Dewey v. Sugg, 109 N.C. 328;Redmond v. Staton, 116 N.C. 140.

The sole question, therefore, is whether docketing and indexing the judgment of 1891 for "$15,000, to be discharged upon payment of" $1,908.33, and a further sum to be ascertained by a reference then ordered, conferred any lien, for if it did the lien is still enforceable against the realty, and the plaintiff has lost nothing by the clerk's failure to index the judgment of Fall Term, 1892. The judgment of Fall Term, 1891, was an absolute unconditional judgment for $15,000 (Nimocks v. Pope, 117 N.C. 315), and was evidently intended to create a lien to that extent upon the realty of the defendant. Else, why take it? Every one who dealt with the defendant named in that judgment knew from the records that his realty was liable to that extent. This lien was in nowise impaired by the fact that the amount thereof might be reduced by further action of the court, but, until such further action, it stood good for $15,000. Rothgerter v.Wonderly, 66 Ill. 390.

It is true that where execution can not issue upon a judgment by reason of the defendant being a municipal corporation, an executor or administrator sued for a debt of the estate, and in similar cases, docketing the judgment confers no lien, but that is because the judgment in such cases has no further function than to ascertain the debt, and can not be enforced against the property of the defendant. Black on (250) Judgments, sec. 407. But this case is like those where a lien can be conferred, and is intended to be conferred, but for extraneous reasons an execution is ordered not to issue, as in Dysart v. Brandreth,118 N.C. 968, where it is held that the lien created by docketing a justice's judgment was not impaired by the suspension of execution by an appeal and a supersedeas bond. And the statute expressly enacts that upon appeal to the Supreme Court the lien of a docketed judgment remains unimpaired, notwithstanding execution may not issue after a supersedeas bond is given. Laws 1887, ch. 192; Clark's Code (3 Ed.), sec. 552. To the same effect is Freeman on Judgments, sec. 383: "A stay of execution resulting from agreement of the creditor does not impair the lien. So, if the court direct the stay." The test is not whether an execution can issue instanter, but whether it can issue at all. Here, if the execution had issued for the $15,000, collection could only have been restrained upon payment of the amount which would discharge it, or until that could be ascertained. A judgment is in the nature of a statutory mortgage (Perry v. Morris,65 N.C. 223; Gammon v. Johnson, at this term, and cases cited), and a mortgage for future advances not to exceed an amount named is valid. A judgment confessed to provide security against a contingent liability is authorized by section 570 of the Code, and of course must be a lien for the full amount named till the actual loss is determined at a lesser sum.

This is not like a judgment by default and inquiry where only the cause of action is admitted, and the plaintiff recovers nothing beyond costs, till proved. Anthony v. Estes, 101 N.C. 541. This is the opposite of that. Here, there is a judgment for a sum certain $15,000, and upon proper docketing it is a lien for that sum until and unless it (251) is reduced by further action, i. e., by payment or a supplementary judgment. The docketing and indexing the latter would have reduced the extent of the plaintiff's lien, but would not have impaired the lien itself, and the failure to so index could not impair it. It has been held that jurisdiction was not in a justice of the peace in an action upon an official bond exceeding $200, though the damages alleged from the breach thereof are under that sum because "the judgment is for the amount of the bond, the execution to be satisfied by payment of the damages assessed." Fell v. Porter, 69 N.C. 140; Joyner v. Roberts, 112 N.C. 111, and cases cited.

The case of McCaskill v. McKinnon, 121 N.C. 190, is not in point against this view, for there was judgment for the debt, and a further judgment of foreclosure to enforce payment. It was held that the statute of limitations ran against the first from its date and against the latter only from judgment confirming the report of sale. It follows, then, that the first judgment for debt was a lien which was not impaired by there being an interlocutory contemporaneous decree for foreclosure and sale.

The lien of the judgment of 1891 has not been discharged, because the judgment itself, by its terms (as well as by the terms of the judgment of Fall Term, 1892), has not yet been discharged, and the plaintiff has suffered no harm by failure of the clerk to index the supplementary or discharging judgment.

Upon the case agreed, judgment should be rendered in favor of the defendants.

Reversed. Cited: Davis v. Pierce, 167 N.C. 138.

(254)