Opinion
(February Term, 1896.)
ACTION ON OFFICIAL BOND — EVIDENCE — PRESUMPTION AS TO VALIDITY OF OFFICIAL BONDS — PROOF — CONSTRUCTION — ALIAS SUMMONS — ACCEPTANCE OF SERVICE — SERVICE OF SUMMONS BY CORONER WHEN SHERIFF IS PARTY — JUDGMENT BY DEFAULT.
1. The clerk of the Superior Court being required to give a bond for the discharge of the duties of his office, etc., (section 72 of The Code), it will be presumed, in the trial of an action on such bond, that he did so, and any such bond found in the keeping of the proper custodian will be presumed to have been properly given and accepted as such.
2. Such bond may be proved, as at common law, without being subjected to the strict rules of evidence, and if there is a subscribing witness it may be proved by other witnesses, as if there was no subscribing witness.
3. Inasmuch as the duly certified copy of the record of any instrument required to be registered is admissible as full and sufficient evidence of such instrument (The Code, sec. 1251), and as the register of deeds is required to register and keep the bond of the Superior Court clerk, a duly certified copy of the record of such bond is competent evidence of its provisions.
4. Where an official bond, given by the clerk of the Superior Court elected for a term of four years, beginning in 1884, recites that the term was for four years, "from and after 1 August, 1878," the error, being clearly clerical and inadvertent, does not invalidate the bond, but will be treated as surplusage.
5. Where a summons, intended but not ordered to be issued as an alias summons was issued, returnable to a future term, at which an amended complaint was filed, naming a party as defendant: Held to be sufficient against such party, though no connecting summonses were issued.
6. Where a party accepts service of a summons, he is precluded from afterwards objecting to the summons on the ground that it was not directed to the proper officer.
7. In an action wherein the sheriff is a party defendant it is proper that a summons issued against a codefendant should be addressed to and served by the coroner. (The Code, sec. 658.)
8. In an action on an official bond, on failure of a defendant to answer, a judgment entered against him on default cannot be final, since the action is not for the breach of an express or implied contract to pay a definite sum of money fixed by the terms of the bond or ascertainable therefrom (section 385 of The Code), but must be "by default and inquiry." (Section 386 of The Code.)
ACTION begun by summons, issued 27 February, 1888, (855) returnable to the March Term of BUNCOMBE, in favor of the plaintiffs against the defendants S. Baird, administrator of E. W. Herndon, deceased; H. M. Herndon, Robert P. Vance, J. R. Jones, F. Sluder, R. L. Luther, J. R. Rich, W. J. Worley and F. A. Lance, tried before Robinson, J., and a jury, at August Term, 1895, of said court.
Davidson Jones, Battle Mordecai and J. B. Batchelor for plaintiffs.
Moore Moore for defendants.
The defendant R. L. Luther excepted to the judgment. (859)
This is an action on the official bond of E. W. (860) Herndon, Clerk of the Superior Court of Buncombe County. At the trial plaintiffs offered in evidence the register's books of Buncombe County, containing what purported to be the official bond of said Herndon, as clerk, signed by himself and the other defendants, as his sureties. This was objected to and ruled out by the court, and plaintiffs excepted. Plaintiffs then produced the original and proved the signatures of each of the defendants, and then offered this in evidence. But this was also objected to by defendants and excluded by the court, and plaintiffs again excepted, submitted to a nonsuit and appealed.
This constitutes the case on plaintiffs' appeal. There are no reasons assigned in the record of this appeal for the objections to the introduction of this evidence, nor why it was ruled out, and after a thorough examination we find no authority for the ruling of the court.
A clerk of the Superior Court holds a high and responsible public office, and one that he cannot hold without entering into bond, as required by law. The Code, sec. 72. This being so, it will be presumed that he did so, and any such bond found in the keeping of the proper custodian will be presumed to have been properly given and accepted as such ( Kello v. Maget, 18 N.C. 414); and, if necessary, it may be proved, as at common law, without even being subject to the strict rules of evidence. Where there is a subscribing witness, it may be proved by other witnesses, as if there was no subscribing witness. Short v. Currie, 53 N.C. 42. This is allowed upon the grounds of public policy. But it is not necessary that we should pursue this line of proof further, as it was clearly admissible as a registered bond. The register of deeds was authorized to take the acknowledgment of this bond and to register the same. The Code, sec. 73. It being of such public importance that official bonds should be preserved, (861) the Legislature provided for and required that they should be registered as an additional means of preserving this evidence, in which the public was interested. And as this was the clerk's bond, he could not pass on the same and admit it to probate, being a party interested. White v. Connelly, 105 N.C. 65; Turner v. Connelly, ib., 74. So the Legislature authorized the register of deeds and ex officio clerk of the board of commissioners, whose duty it was to pass upon and accept the clerk's bond, to take the acknowledgment and probate, and register the same. The Code, sec. 73, supra.
The bond being authorized to be registered, the "registry," or register's books containing this registered bond, was competent evidence and should have been admitted. The Code, sec. 1251.
Having considered the plaintiffs' appeal, we come to the consideration of defendant Luther's appeal. He contends that he was not in court, and therefore no judgment could be taken against him; that the summons against him purports to be an alias summons, when in fact it was not, and there had been no alias ordered at the June term of the court; that this broke the connection with the original order of alias summons. This is true, that it broke the connection, and it could not relate back beyond its date. Etheridge v. Woodley, 83 N.C. 11. But still it was a summons, returnable to August term, upon which he acknowledged service more than ten days before that term. It has been several times held by this Court that the only purpose of the summons is to bring the party into court — to notify him that there will be a complaint filed against him at the return term. The summons, under The Code, in no way indicates the cause of action. That is to be learned from the complaint. In this it differs from the writ, under the old practice, which did to some extent indicate (862) the plaintiff's cause of action. The defendant Luther, according to all the authorities that we know of, must be held to have been brought into court at August term, 1888, and at this term an amended complaint was filed in the action, by leave of court, in which he is named as one of the defendants.
Another objection of this defendant to his being in court is that this summons was issued to the coroner and not to the sheriff of Buncombe County. There is more than one reason why this objection cannot be sustained. The first is that it is a summons — a notice to this defendant — to be at court at August term; that the plaintiff will file a complaint against him at that time. And he accepts this notice. The coroner has nothing to do with it. By his own act he puts himself in court. But another reason is that the law requires the coroner to act when the sheriff is a party. The Code, sec. 658. The coroner having the right to act, it will be presumed that he acted properly, until the contrary is shown, if he had served the summons. But in this case it appears from the affidavit of defendant Luther that one of the defendants (W. J. Worley) was Sheriff of Buncombe County, and the first summons, as well as this, was issued to the coroner. It must therefore be held that defendant Luther was in court from and after August term, 1895.
But he filed no answer, for the reason, as he says, that he had a conversation with his codefendants and agreed to bear his part of counsel fees to defend the action; that they agreed to attend to the employment of attorneys, and he thought they had done so, and for that reason he gave the matter no further attention. This would seem to be somewhat inconsistent with his other defense, that he was not even in court. But to give him the full benefit of the statements contained in his own affidavit, as the court did not find the facts, as we think it should have done if defendant requested (863) it, instead of making the affidavits a part of the case on appeal, still it cannot benefit the defendant. Bank v. Foote, 77 N.C. 131. And while we cannot allow the defendant to have the judgment set aside upon the ground of inexcusable neglect, we feel bound to set it aside upon the ground of its being irregularly taken, contrary to the statute and the practice of the court. It is not such a final judgment as is provided for in section 385 of The Code, but could only be a judgment by default and inquiry, under section 386, which cannot be executed until the next term.
It therefore follows, from what has been said, that the judgment of nonsuit must be set aside and a new trial had, and that the judgment against the defendant Luther must be set aside and the case proceeded with according to law against all the defendants in court.
It was suggested on the argument here that the bond declared on did not cover the demand in plaintiff's complaint, for the reason that it said from and after "1 August, 1878." This question was not and could not have been before the court below for judicial determination, as the court held that the bond was incompetent evidence, and did not allow it to come before the court, and therefore could not judicially construe a bond which was not before the court for construction; nor does it appear from the record that the court did so; nor can we say that the record presents this question for our determination; but as it was called to our attention and argued, and as the same question may be presented on a new trial, we think it proper for us to intimate our opinion now. Therefore, if it shall appear on the new trial that Herndon was elected clerk in 1884, gave this bond and was (864) inducted into office and served as clerk, he and his sureties would be liable. This would show that this expression, after "1 August, 1878," was an inadvertence or that it was an attempted fraud on the public, neither of which will be allowed to defeat public justice. We suppose it was an inadvertence, caused from copying from a bond of a former date. If Herndon is shown to have been elected and inducted into office in 1884, this explains the bond, and this inadvertence may be treated as stricken out, or as surplusage, and the bond be good. Sprinkle v. Martin, 69 N.C. 175; Kello v. Maget, supra. There is
Error.
Cited: Cowles v. Cowles, 121 N.C. 276; Junge v. MacKnight, 135 N.C. 109; Scott v. Life Assn., 137 N.C. 522, 527; Lumber Co. v. Coffey, 144 N.C. 561; Currie v. Mining Co., 157 N.C. 220.