Gibbs v. G. H. Weston & Co.

18 S.E.2d 698, 221 N.C. 7, 1942 N.C. LEXIS 371

• Court: Supreme Court of North Carolina
• Decided: February 25, 1942
• Status: Published

Opinion

Seawell, J.

Chapter 12, art. 24, of tbe Consolidated Statutes (C. S., 623-625 inclusive), authorizes tbe entry of judgment by confession of tbe debtor evidenced by bis written statement, duly verified, tbe contents of which must be substantially as set out in C. S., 624.

Tbe verified statement is jurisdictional, both as to its filing and as to its contents. Cline v. Cline, 209 N. C., 531, 535, 183 S. E., 904; Farmers Bank of Clayton v. McCullers, 201 N. C., 440, 160 S. E., 494; Smith v. Smith, 117 N. C., 348, 23 S. E., 270; Davidson v. Alexander, 84 N. C., 621. Since tbe proceeding is in derogation of common right, the statute authorizing this form of judgment must be strictly construed. Smith v. Smith, supra.

A question has been raised here as to tbe sufficiency of tbe statement, which we do not find it necessary to consider as our decision turns upon a more serious defect.

It is settled in this jurisdiction that tbe mere filing and entry of a verified statement as required by tbe statute, although recorded on tbe judgment docket, and cross-indexed as judgments are, will not be effective as a judgment under tbe statute. Farmers Bank of Clayton v. McCullers, supra. Tbe verified statement must be regarded as a means by which tbe court acquires jurisdiction and authority and the information upon which it may render its judgment, and the intention of the clerk that it should have the effect of a judgment is of no significance.

The statute — C. S., 625 — provides that “the statement and affidavit, with the judgment endorsed, thenceforth become the judgment roll.” The rendition of judgment in a proceeding of this kind is a distinct office of the court, not to be confused with the ministerial acts of filing and docketing. Farmers Bank of Clayton v. McCullers, supra; Williams v. Atwood, 52 Ga., 585.

The failure to comply with the mandatory terms of the statute and especially the want of rendition of judgment upon the statement and affidavit of the defendant is not a mere irregularity, but constitutes a fatal defect, rendering the proceeding of no effect as against creditors whose judgments were subsequently docketed.

The appealing defendants have raised no question here with regard to the situation brought about between parties and privies to the attempted confession of judgment, and we expressly refrain from passing upon such a question.

The judgment is

Affirmed.