Opinion
(June Term, 1860.)
This Court has no jurisdiction of a scire facias against bail, in an action brought here by appeal, and in which judgment has been rendered here against the principal.
SCIRE FACIAS (issued on motion in this Court), to subject bail. (393) The defendants became the bail of one John McLeran to a writ, issued in favor of the plaintiff, returnable to the Superior Court of CUMBERLAND. The original cause came to this Court by an appeal from the said Superior Court of Cumberland, and a final judgment was rendered here against the principal for $995.87, with interest and costs, which is still unsatisfied.
J. H. Bryan for plaintiff.
D. G. Fowle for defendant.
On the return of the scire facias, defendant moved to dismiss upon the ground that this Court has no jurisdiction of the proceeding.
We are of opinion that this Court has no jurisdiction of a scire facias against bail, in an action brought here by appeal and in which judgment has been rendered here against the principal.
In support of this jurisdiction two provisions by statute are relied on: ch. 33, sec. 6, "The Court shall have power to issue writs of certiorari, scire facias, etc., and all other writs necessary and proper for the exercise of its jurisdiction," and ch. 4, sec. 22, "In every case of appeal the Superior Court shall render such," etc., . . . "and may cause the same to be enforced by the proper process."
These provisions, we think, only embrace writs and other process which, we think, are necessary and proper to enforce a judgment which this Court has previously rendered, as a fieri facias or a scire facias, to have execution on a judgment which has become dormant, and clearly do not apply to writs and other process for the purpose of getting another judgment against persons who have not previously been before the Court, as it the case of a scire facias against bail, against whom another judgment is asked for, not simply that execution may issue on the judgment previously rendered against the principal. So that, although it presupposes a judgment to have been rendered, yet, in respect to the bail, it is an original proceeding, and is so treated in the statute, ch. II, sec. 4:
"When a scire facias against bail shall be returned `Executed,' (394) they may appear and plead as in other cases, but the plea of non est factum shall not be received unless verified by affidavit filed with the plea."
In respect to prosecution, appeal, and injunction bonds there are express provisions that judgment may be rendered, on motion, by the Court, which renders the principal judgment in the case. In respect to bail bonds there is no such provision, which furnishes a potent implication against the jurisdiction.
It is settled that a bail bond is no part of the record. Hamlin v. McNeil, 30 N.C. 172. So that, although the remedy by sci. fa. is given by statute, non constat that it was the intention to affect in any way the question of jurisdiction; and besides the consideration that a court ought not to assume jurisdiction by implication, there is the further consideration that to do so, in this instance, would involve the Court in much embarrassment as to the mode of proceeding, for the bail are allowed to appear and plead "as in other cases," and if they plead "non est factum," "release," "surrender of the principal," or any other matter in pais, on which issue is taken, how is the Court to proceed? It has no jury in attendance, and the omission of any provision for such a state of things repels the idea of an intention to confer jurisdiction by implication.
Our conclusion is supported by American Bible Society v. Hollister, 54 N.C. 13; Smith v. Cheek, 50 N.C. 213, where it is held that this Court has no jurisdiction to allow a bill of revivor or issue a writ of error, because they are in the nature of original proceedings, and its jurisdiction is limited to cases brought before it by appeal at law and by appeal or removal in equity. So it was necessary to confer the jurisdiction by express provision.
It is also supported by the learning and authorities cited in Foster on Scire Facias, pages 11, 13 (73 Law Lib.), to which we were referred on the argument.
The different kinds of scire facias are there classified:
1. Those in continuance of a suit, as a sci. fa. to have execution(395) on a dormant judgment.
2. Those which constitute an original proceeding, as a sci. fa. to repeal a patent.
3. Those in the nature of an original proceeding, as a scire facias on a recognizance of bail.
Our case being a sci. fa. on a bail bond, is, of course, more strictly an original proceeding than a scire facias on a recognizance of bail, for the latter is a matter of record, while the other is a matter in pais, on which, at common law, the remedy was an action of debt; and the provision of the law, as it stood in the Revised Statutes, that bonds payable to the sheriff, or the bail to the writ, should be assigned by the sheriff, by his endorsement under seal, or should be considered as assigned by him when filed, and not excepted to, as provided in the Revised Code, and that the bail should be charged thereon by sci. fa. does not take from the proceeding its character of an original proceeding against the the bail, the only change being that, inasmuch as the remedy against the bail to the writ was an action of debt, and that against the bail to the action was a scire facias after the actual or implied assignment of the bond executed to the sheriff, the remedy should be by scire facias,
Lastly, it is supported by the fact that our "old and experienced" clerk informs us no such writ has ever before been issued by him, or any of his predecessors so for as the papers of his office show. This proceeding, therefore, is of the first impression, and has no precedent to support it.
PER CURIAM. Motion to dismiss allowed.
Cited: Cates v. Whitfield, 53 N.C. 268; Bryan, in re, 60 N.C. 49.
(396)