Banking Co. v. . Morehead , 126 N.C. 279 ( 1900 )

FURCHES, J., dissenting. The motion was made by Mrs. Morehead, while yielding submission to the decision of the Supreme Court, for leave to file an amendment to her answer. The grounds of the motion, stated upon affidavit, were that the note in suit and reduced to judgment was signed by her as executrix of Eugene Morehead, and by the other defendants — that she submits to the decision of the Court; that she is personally bound, and alleges that the other defendants are coprincipals with her; that one of her codefendants, Lucius Green, is dead, and that the other, B. L. Duke, since the decision of the Court, has purchased the judgment from the plaintiff, and had it assigned to a trustee for the purpose of enforcing it against her in full, whereas she is only liable for one-third of it. The object of the amendment asked for was for the purpose of submitting (280) an issue to the jury to establish the fact that all the signers of the note were principals.

A counter-affidavit was filed by defendant Duke. His Honor was willing to exercise his discretion, and permit said amended answer to be filed, but was of the opinion that he had no such power now, after issues found at a prior term, and under decision of Supreme Court.

The motion is denied upon the ground of want of power solely.

Defendant Morehead excepted and appealed. This action was originally commenced by the plaintiff against Lucy L. Morehead, executrix of Eugene Morehead, deceased, Lucy L. Morehead, individually, B. L. Duke and Lucius Green, for the recovery of an amount due on a note payable to the plaintiff. The note was the joint and several obligation of Mrs. Morehead, executrix, Duke and Green, and made no allusion as to who was principal, and who was surety, if such relationship existed. It was sought to charge Mrs. Morehead personally because of her having executed the note as executrix. A judgment by default was taken against Green and Duke at June Term, 1894, of Durham Superior Court. After extended litigation on the part of Mrs. Morehead, this Court decided at February Term, 1899, that she was liable on the bond individually. A rehearing was granted, and the petition dismissed. At October Term, 1899, of the Superior Court, upon motion for judgment by the plaintiff according to the opinion of the Supreme Court, Mrs. Morehead, through her (281) counsel, moved for leave to file an amended answer in which, submitting to the decision of the Court, she desired to plead as follows: That since the decision of the case by the Supreme Court, Duke had purchased the judgment from the plaintiff, and had the same assigned to James Pugh in trust for him; that the estate of Green is insolvent, and that the judgment was obtained in Green's lifetime, and, having been duly docketed, is a preferred lien on his estate; that if she is required to pay the judgment in full, and then to bring an action against Duke and Green's estate, she will recover only a small proportion from that estate; that Duke and Green were not her sureties on the bond, but that they were all principals. Her purpose in making the motion was, first, to have an issue submitted to the jury as to whether she and Duke and Green were joint principals as between themselves, in order that a judgment might be rendered which would determine the ultimate rights of the parties on each side as between themselves. His Honor stated that he was without power to grant the amendment, and on that ground declined to allow it.

The defendant moved further, that the court should pass upon and find the facts as to whether the defendants, Duke and Green, are her sureties or her coprincipals, and to embody such finding in the judgment according to the Code, sec. 424, subsec. 1. This his Honor declined to do on the ground of want of power.

The matter which the defendant Morehead desired to have determined by the amendment raised an issue of fact, and his Honor properly ruled that he could not try that without the consent of all parties; and Duke had answered the statements contained in her motion, and had denied them all, except that he had purchased the judgment.

(282) But we think that he was in error in ruling that he had no power to allow the amendment to the answer in order that an issue might have been joined as to whether the parties were coprincipals as between themselves. The case which would have been presented by such a course would not be like those of Calvert v. Peebles, 82 N.C. 334, andDobson v. Simonton, 100 N.C. 56. The principle decided in the last named, and like cases, was that the Superior Court had no right or power to alter or modify the judgment or decision of the Supreme Court in any respect, and that such a thing could only be done by a direct proceeding alleging fraud, mistake, imposition, and the like. Certainly we do not intend in any way or to any extent to alter that rule; but, in the present case, the purpose of the defendant Morehead is not to alter or modify in any way the judgment of the Supreme Court. She had contested her individual liability on the note, and the judgment of the Superior Court was in her favor. There was no need then on her part, at the time of the rendition of the judgment in the Superior Court, to make a motion to have the ultimate rights between Green and Duke and herself determined. She, at the first moment after her personal liability on the note had been fixed by judicial decree, desired, not to change or to modify the decision of the Supreme Court, but simply to have the rights and obligations of each of the defendants, who have all been held by the Supreme Court to be joint principals so far as the original plaintiff is concerned, determined and settled between themselves. We do not have to consider, as we have seen the rights of the original plaintiff in the action, for practically it is not concerned in the result as it has assigned the judgment to a trustee for Duke's benefit. It is simply a matter of the adjustment of the ultimate rights between themselves of three defendants who are joint obligors as to the plaintiff, but among whom different rights and liabilities as between themselves (283) are alleged to exist.

It may turn out on the trial that Mrs. Morehead is principal, and that Duke and Green are sureties to her, or that all are joint principals as between themselves. In Black v. Black, 111 N.C. 300, it was decided that, after a final decree in the Supreme Court, a motion for a new trial upon newly discovered evidence could be made, and that it should be made in the Superior Court. If a new trial could be ordered by the Superior Court after a final decision in the Supreme Court, surely such a motion as the one made in this case ought to have been granted it, if the judge in his discretion thought it proper to grant it.

Error. Cited: Merrimon v. Lyman, post, 542; Mfg. Co. v. Blythe, 127 N.C. 327;Cook v. Bank, 130 N.C. 184; S. c., 131 N.C. 99; Smith v. Moore,150 N.C. 159; Lancaster v. Bland, 168 N.C. 378.