Fryar v. Gauldin

130 S.E.2d 689 (1963)

259 N.C. 391

J. A. FRYAR, Jr., Plaintiff, v. Oren Clifton GAULDIN, Defendant.

No. 597.

Supreme Court of North Carolina.

May 8, 1963.

*691 Shreve & Merritt, Greensboro, for R. L. Gauldin and Minnie L. Gauldin, appellants.

Hines, Dettor & Strange, Greensboro, for plaintiff-appellee.

BOBBITT, Justice.

The record indicates neither appellants nor their counsel had notice of the proceedings before Judge Phillips at October 22, 1962, Term. Too, the record indicates Judge Phillips was not then advertent to the fact that appellants had filed and served on October 19, 1962, their petition for an order exonerating them from liability as sureties on the $5,000.00 bond and a notice of a hearing to be held thereon at November 5, 1962, Term.

The brief of plaintiff-appellee states this is the sole question involved: "Did the liability of the sureties become final upon the signing of the judgment in this cause (a) without notice served upon them and (b) without exhausting any remedies against their principal?" (Our italics)

The bail required to obtain the discharge of Orel Clifton Gauldin, the defendant, from arrest, was a written undertaking, payable to the plaintiff, in the amount fixed in the order of arrest, "to the effect that the defendant shall at all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein." G.S. § 1-420; G.S. § 1-419. Indeed, as indicated in our preliminary statement, plaintiff prayed that defendant he required to give bond in the amount of $5,000.00 containing these statutory provisions.

Nothing in the record shows a breach of a bond drafted in accordance with G.S. § 1-420. Indeed, it has not been established herein that Oren Clifton Gauldin, the defendant, wilfully and maliciously assaulted plaintiff. "In order that such an execution (against the person) may be issued after the plaintiff has exhausted his remedy against the property of the defendant, *692 a distinct and separate issue as to the essential fact upon which the right to the execution is based must be submitted to the jury, so as to have an affirmative finding as to the existence of the fact." Walker, J., in McKinney v. Patterson, 174 N.C. 483, 486, 93 S.E. 967.

"In case of failure to comply with the undertaking the bail may be proceeded against by motion in the cause on ten days' notice to them." G.S. § 1-436.

The $5,000.00 bond executed by appellants as sureties contains the provisions required by G.S. § 1-420 and in addition the following: "and acknowledge ourselves bound to the plaintiff to pay such damages and costs as may be assessed and determined, or either, in the trial of this cause, against the defendant herein." Plaintiff asserts that under this additional provision appellants are liable unconditionally for the payment of plaintiff's judgment against Oren Clifton Gauldin, the defendant, without reference to whether the defendant is amenable to the process of the court. Appellants contend this additional provision is without consideration and void. Upon the present record, we express no opinion as to the legal significance of this additional provision. Suffice to say, this additional provision did not deprive appellants of their right under G.S. § 1-436 to ten days' notice of any motion for judgment against them for any alleged failure to comply with the terms of the $5,000.00 bond.

On account of plaintiff's failure to give notice as required by G.S. § 1-436, the judgment entered by Judge Phillips at said October 22, 1962, Term, as to appellants, is vacated, and the cause is remanded for further proceedings. This vacates the $6,000.00 stay bond dated November 14, 1962, executed by appellants and by A. B. Fulp and Lorene G. Fulp.

Plaintiff, if so advised, may move for judgment against appellants and give ten days' notice of his motion. In such event, appellants, by answer to such motion, may assert the defenses on which they rely, including the matters set forth in their petition of October 19, 1962.

The purported appeal from Judge Riddle's order of November 7, 1962, is dismissed. Judge Riddle made no ruling on appellants' petition of October 19, 1962, but simply continued the hearing thereon until this Court had acted on appellants' appeal from the judgment entered by Judge Phillips at said October 22, 1962, Term.

Re: Appeal from Phillips, J., error and remanded.

Re: Appeal from Riddle, S. J., appeal dismissed.