Opinion
(December Term, 1833.)
A levy by a sheriff upon goods, where they remain in possession of the defendant, is no payment or satisfaction of the judgment, and a new execution may issue, as well where there are several defendants, as where there is but one.
A scire facias was sued out from the Superior Court of NASH, at the instance of John A. Binford, against Thomas P. Alston, George Cooper and Henry Arrington, calling on them to show cause wherefore an execution should not issue upon a judgment theretofore rendered against them in favor of the said Binford, on an appeal bond in said Court. The process not having been served upon Alston, the plaintiff entered a nol. pros. as to him, and the cause was submitted to the Court upon a case agreed between the plaintiff and the other defendants. The Court, Norwood, J., presiding, gave judgment for the plaintiff, and the defendants appealed. (352)
Badger for the plaintiff.
Devereux for the defendants.
The case agreed stated that the defendants were the sureties of Alston on a bond given for the prosecution of an appeal from the county to the Superior Court — that judgment was rendered on said bond against Alston and his sureties, and an execution issued thereon to the sheriff, who levied it upon property sufficient to satisfy the judgment — that the property was taken by the sheriff into his possession and avertised [advertised] for sale — that at the day of sale the plaintiff agreed with Alston, without the privity or consent of the defendants, that Alston should pay him a part of the judgment, and the execution returned, "indulged" for that time — that Alston having complied with the terms of this agreement, the property was permitted by the sheriff to remain with him, and the sheriff thinking the lien of the execution bound the property, no levy was endorsed upon the execution — that the plaintiff directed the clerk to issue the execution again, but this not having been done the judgment became dormant — that Alston made no further payments, became insolvent and removed out of the State. The case then added "if these facts constitute a defense to the scire facias judgment is to be rendered for the defendants, if not, then the plaintiff is to have execution against him."
We concur with the Judge in the opinion that the facts stated in the case do not constitute a legal defense to the scire facias. By the judgment on the appeal bond the sureties became absolutely fixed with the debt. They were no longer bound that Alston should pay the plaintiff, but they became bound with Alston to pay the amount of the judgment to the plaintiff. Whatever, therefore, might yet have been the relation between the defendants and Alston, they were equally with him the (353) debtors of the plaintiff, and nothing but satisfaction, or what was equivalent to satisfaction, could discharge them at law from the judgment. The proceedings upon the levy against Alston do not amount to a satisfaction as against him, and cannot therefore be a satisfaction as to these defendants. The case comes directly within the principles laid down in this Court. In re King, 13 N.C. 341.
By the terms of the case agreed, the facts furnishing no defense against the scire facias, execution is to be awarded against the defendants. But here we are met with a difficulty which has occasioned some perplexity. We are bound by the express enactments of the statute under which this Court is organized, to render such judgment as upon an inspection of the whole record, ought to have been rendered in the Superior Court. Alston is not a party to the scire facias, and no agreement between the parties to it could authorize the Court to issue an execution against him and the defendants. Indeed we cannot but understand the agreement to be, that an execution, if awarded, is to issue against the defendants only, and we understand the judgment also, though not formally and precisely expressed, to award such an execution.
Although the scire facias to revive a judgment is to some purposes a new action, yet in the main it is to be regarded as the continuation of a former action. It is a proceeding to enforce a judgment already recovered. It creates nothing anew, but only reanimates that which had before existed, but whose vital faculties are suspended. If a judgment thereon be rendered for the plaintiff, it is not that he recovers anything (except his costs on the scire facias), but that he have his execution for the debt, damages and costs, according to the force, form and effect of the recovery set forth in the scire facias. If, therefore, this recovery has been had against more than one person, the proceeding to enforce it must be against all, unless there be some fact of record which shows that the whole judgment has survived, or which in law warrants the collection of the whole judgment against some of them only; for the execution ought to follow the judgment, and if this be joint, so (354) should be the execution. Nor do we think any agreement of the parties can authorize us to affirm a judgment, which upon an inspection of the record appears to be erroneous. This Court acquires jurisdiction, as a revising tribunal by appeal, and the extent of that jurisdiction as well as the manner of exercising it, must necessarily differ in many respects from that which is possessed and exercised by those tribunals which take cognizance of causes by writ of error. In these a release of errors may be pleaded, and on the plea being found, then the judgment is, not that the judgment below be affirmed, for they cannot affirm an erroneous judgment, but that the writ of error be barred. See 2 William's Saunders, 101, and the authorities there cited. A writ of error is considered as a new action in which the plaintiff may be nonsuited, and when it is brought contrary to an agreement the Court may compel him to submit to a nonsuit. But when a case is regularly brought before this Court by appeal, our duty is defined by law — to examine the record, affirm the judgment if it be correct, or reversing it as erroneous, render such judgment as in law ought to have been rendered in the Court from which the appeal was taken.
But we think that there is enough apparent upon this record to warrant the judgment which has been rendered. The scire facias recites indeed a judgment against three, and calls on all of them to show cause wherefore an execution should not issue to enforce that judgment against them all. Two only are summoned, and they undertake to show cause. The truth of the matter alleged is admitted by the plaintiff, and a part of it is, that the person not summoned is out of the State and insolvent. Upon this record and between these parties the facts so admitted must be regarded as conclusively true, and if true, then in law the execution, notwithstanding the form of the scire facias, ought to issue against the defendants only. It is stated in 1 Rolle Abridgment, 890, pl. 1 and 2, and in Sergeant William's notes to 2 Saunders, 227, that if there be judgment against two, and a scire facias issue against both to have (355) execution, if it be returned that one is summoned, and he makes default, and that the other has nothing, the plaintiff may have execution for the whole against him who was summoned and made default; and so likewise, if it be returned that one is dead and the other summoned, there shall be execution for the whole against the survivor. It appears then that the award of execution is not necessary to pursue the form of the scire facias, but may be accommodated to what shall judicially be ascertained to be in law fit for enforcing the judgment, and also that if it appear of record that one of the defendants to the judgment cannot be summoned, for that he has not the ability to be contributory to the payment of the judgment, the execution for the whole may rightfully issue against the other. A return of the officer declaring those facts, and the silence of the person summoned in regard to them, cannot place them upon the record more distinctly or conclusively than we find them here.
The judgment is to be affirmed with costs.
PER CURIAM. Judgment affirmed.
Cited: Eason v. Petway, 18 N.C. 46; Shaw v. McFarlane, 23 N.C. 218; Smith v. Cheek, 50 N.C. 213; Walton v. Gatlin, 60 N.C. 316; McDowell v. Asbury, 66 N.C. 447; McDonald v. Dickson, 85 N.C. 250; Gatewood v. Burns, 99 N.C. 360; Aldridge v. Loftin, 104 N.C. 126.